1988 P Cr (PLP)

Muhammad Anwar for Appellant. Qarni for the State. This appeal is directed against the order of learned Sessions Judge, Karachi East dated 17-3-1987 whereby he has convicted the appellant under section 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.500 or in default to further undergo R.I. for two months and also awarded four stripes.

2. The prosecution case in brief is that on 26th February, 1986 Umerdin Rajput, Sub-Inspector Excise Police, Malir Division, Karachi apprehended the appellant in presence of Mashirs Bashir Ahmed and Chanfred near Chakore Nala, Drigh Colony, Karachi and secured from his possession 22 grams of Heroin. The F.I.R. was registered and after usual investigation the appellant was challaned in the Court and was convicted as above.

3. I need not go into the merits of the case as I find that a material irregularity has been committed in the trial of the case which cannot be cured even under section 537, Cr.P.C. and as such the case is to be remanded back for retrial.

4. The appellant, who was facing charge for criminal offence was not examined by the trial Court as required under section 340, Cr.P.C. to answer or defend the charges levelled against him. No doubt the learned trial Judge had asked the appellant whether he wanted to examine himself but he did not offer to examine himself on oath. But it does not absolve the trial Court of the duty to examine the appellant on oath. Reliance may be placed on P L D 1986 FSC 242 and P L D 1987 Kar.

507. Reference may also be made to the case of Jan Muhammad v. The State 1987 P Cr. L J 2302. In this case the learned Single Judge of this Court who was hearing the appeal, made a reference to my Lord Chief Justice for constituting a larger Bench to consider the question as to whether section 340(2), Cr.P.C. does or does not cast duty upon the trial Court to record evidence of accused as envisaged thereunder. The Division Bench constituted by his Lordship Chief Justice gave its opinion vide judgment dated 12-3-1987 which is as follows:- "The evidence on oath by the accused required to be given under subsection (2) of the section 340 contained in Chapter XXV of the Code of Criminal Procedure in disproof of the charges or allegations made against him or the co-accused charged or tried together with him at the same trial is, therefore, integral part of the trial of the cases. Of course, the accused has option of leading evidence in defence under Chapter XXV or, as the case may be, under Chapter XXII-A of the Code of Criminal Procedure but he has no option .in giving evidence himself on oath as enjoined under subsection (2) of section 340 and, therefore, duty is cast upon the trial Court to call upon him to give evidence on oath and unless that is done, the trial of the case is not complete. We are, therefore, of the opinion that the obligation of giving evidence on oath on the accused under subsection (2) of section 340 of the Code of Criminal Procedure casts obligation on the trial Court to call upon the accused to give evidence on oath and record his evidence unless he declined to do so. Accordingly, answer to the question referred for the opinion of the Division Bench is in affirmative." I, therefore, allow this appeal, set aside the judgment and conviction of the learned trial Court and order retrial of the accused from the stage where the appellant would be examined under section 340(2), Cr.P.C. Learned trial Court is directed to decide the case afresh on merits unprejudiced by its previous order. S.G.D./M-528/K Case remanded.