P L D 1973 Lahore 824 (PLP)

The Court under section 342 may, for the purpose of enabl ing the accused to explain any circumstances appearing in the evidence against him, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as it considers necessary The Magistrate was seized of the Inquiry in the case under Chapter XVIII. It was competent for him under this provision to put any question to the accused and at agcy stage of the inquiry. The order of the Magistrate to examine the accused after the close of the prosecution evidence could not be open to any exception. It was highly desirable that committing Magistrate should adhere to the previsions of section 342 of the Criminal Procedure Code, and examine the accused after the prosecution case has been concluded but this should not be understood to mean that if they do not comply with the pro visions of section 342, Cr. P. C, the failure would render the proceedings invalid because in the case exclusively triable by the Sessions Court, it is that Court which tries the accused and, therefore, that Court has is strictly conform to the provisions of section

342. Sh. Nasim Hassan for Petitioner. Mian Muzaffar Ahmad for the State. Date of hearings 2nd May 1973. It is stated in the petition that after the prosecution evidence was completed the Magistrate indicated that he would examine the accused and frame a charge against them and after that give summonses Dasti for the production of the defence evidence. The petitioner, it is so stated, informed the learned Magistrate that he could examine the accused and frame the charge only after the defence witnesses had been examined. The case was adjourned to next date i.e. 20th of March 1973. The petitioner on that day submitted the list of the defence witnesses but the learned Inquiry Magistrate without passing any order to examine the defence witnesses wanted to "record the statements of the accused and charge them and thereafter examine defence evidence and close the case by the 29th of March 1973." The petitioner has challenged the order through this revision petition.

2. I have perused the record. Learned Magistrate, in his order dated the 21st of March 1973 observed ‑‑-- In this case the prosecution has already closed the evidence on 19‑3‑

73. So the date was fixed for recording the statements of the accused for further proceedings. An application has been made on 20th by learned counsel for defence that the defence may be summoned in which there was a list of D. Ws. It was adjourned for today. Now the learned counsel has come forward with an application praying that the statements of the accused persons may be deferred and the priority should be given to the production of their defence. I may state at the very outset that there is nothing on the record to indicate that the Magistrate had decided to frame the charge against the accused after recording the statement of the accused. It is provided In section 208 of the Code of Criminal Procedure that the Magistrate shall take all such evidence as may be pro duced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate and that under section 209 when such evidence has been taken, and he has (is necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are no. sufficient grounds for committing the accused person for trial record his reasons and discharge him, unless it appears to hire that such person should be tried before himself or some other Magistrate, in which case h:: shall proceed accordingly. However, If the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he, under section; 210, Cr. P C., has to frame a charge. It is, therefore, manifest that before the Magistrate had framed the charge he shall record also the evidence on behalf of the accused. If the Magistrate had framed the charge against the petitioner without recording the evidence which he wanted to produce his order would have been exceptionable. Learned counsel contended that the Magistrate verbally gave this indication. Even if he had made any such oral observation I cannot take notice of it because the Judges have to speak only s through their orders and judgments. To set aside or declare an oral order as invalid is a thing unknown to the superior Courts.

3. The only question which is to be examined is whether .the Magistrate was competent to act under section 342, Cr. P. C. Section 342 is in Chapter XXIV of the Cr. P. C. and it contains general provisions for trial. The Court under section 342, may, for the purpose of enabling the accused to explain any circum stances appearing in the evidence against him, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as it considers necessary. Learned Magis trate was seized of the inquiry in the case under Chapter XVIII. It was competent for him under this provision to put any question to the petitioner and at any stage of the inquiry. The order of the learned Magistrate to examine the accused after the close of the prosecution evidence is not open to any exception. It C is highly desirable that committing Magistrate should adhere to the provisions of sections 342 of the Criminal Procedure Code, and examine the accused after the prosecution case has been concluded. However, I should not be understood to have said that if they do not comply with the provisions of section 342, Cr. P. C., the failure will render the proceedings invalid because in the case exclusively triable by the Sessions Court, it is that Court which tries the accused and, therefore, that Court has to strictly conform to the provisions of section 342.

4. I find no merit in this petition and dismiss it. The record should be sent back immediately.

5. I would, however, like to make it clear that after record ing the prosecution evidence the Magistrate will strictly conform to the provisions contained in section 209 and give an oppor tunity to the petitioner to lead the defence evidence before he may proceed under section 210 of the Cr. P. C. S.A.H. Petition dismissed.