P L D 1962 (W (PLP)

ORTCHESON, J.

The relevant facts of the case are given in this Court's order dated the 25th of January 1962, which should be referred to in this connection.

2. Mr. Ghazanfar Ali Shah for the State was unable to cite any precedent on the point that section 375, Cr. P. C. can be used A to cure an illegality, arid for the reasons in the referring order we have no option but to hold that the order remanding the case for further enquiry passed by the Bench which heard the appeal of the convict and the reference under section 374, Cr. P. C. cannot be sustained. That order is accordingly quashed and the conviction of the appellant set aside.

3. The next question for consideration is what further action should be taken. Although, in Maonda v. The State (P L D 1958 S C (Pak.) 275), it was ordered that the case be remitted to a Sessions Court to be selected by the High Court and retried from the point of conclusion of the prosecution evidence, keeping in mind the fact that section 350, Cr. P. C. has no application to Courts of Session and the general principle of law that only a person who has heard the evidence it the case is competent to decide whether the accused is innocent or guilty, we consider it expedient to order a retrial ab initio, because Mian Shakirullah Jan, the learned Sessions Judge who tried the case, bas since been raised to the Bench of this Court. We accordingly direct that a new trial be held. The accused will mean while remain in custody. Re-trial ordered. Muhammad Ismail Bhati assisted by Khan Bahadur for Appellant. Ch. Muhammad Ali, A. A. G. for Respondent. Date of hearing : 25th January 1962. ORTCHESON, J.

In this case a point of law has arisen which, in our opinion, necessitates a reference to a Full Bench.

2. The facts relevant to the point in question are that one Attai Khan was tried by the learned Sessions Judge, Peshawar, under section 302, P. P. C. and sentenced to death for the murder of one Jamal-ud-Din. The convict appealed to this Court and the case was also referred under section 374, Cr. P. C. for confirma tion of the sentence. The proceedings were heard on the 27th and 28th of November 1961 by a Division Bench of this Court. In their order dated the 30th of November the learned Judges called attention to the fact that in his examination under section 342, Cr. P. C. no opportunity had been given to the accused to explain two alleged dying declarations, one oral and one written, made by the deceased. After considering the authorities on the effect of the omission they came to the conclusion that prejudice had been caused to the accused, the dying declarations in question forming circumstances that were likely to turn the scale in favour of the prosecution. They accordingly directed- "These two circumstances not having been put to the appellant at any time before, it has become necessary for us under the provisions of section 375, Cr. P. C. to remand this case back to the Sessions Court, Peshawar, for further enquiry to be made by that Court in the course of which these two pieces of evidence, namely, the oral and the written dying declarations, should be put to the appellant and the result of such enquiry and the answers so obtained from the appellant shall be certified to this High Court in the course of the next 4 weeks. The Sessions Court, Peshawar, when making this further enquiry, will also give the appellant an opportunity of making any further statement he may desire to make, and of leading any defence evidence should he wish to do so. Inasmuch as the trial in this case in the Sessions Court, Peshawar, opened on the 25th September 1961 and concluded the next day, 26th September 1961, there ought to be no difficulty in securing the services of the same assessors to attend this further enquiry. We are aware that the then Sessions Judge, Peshawar, who tried this case, is no more available for making this further enquiry, and in these circumstances we, therefore, direct that this further enquiry be made by his successor."

3. With the greatest respect to the views of the learned Judges, we are of the opinion that section 375, Cr. P. C. cannot be used to cure the illegality which has resulted from failure to comply with the mandatory provisions of section 342, Cr. P. C. Section 375, Cr. P. C. runs- "(1) If when such proceedings are submitted the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or in nocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session. "(2) Such inquiry shall not be made nor shall such evidence be taken in the presence of jurors or assessors, and, unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when the same is made or taken. "(3) When the enquiry and the evidence (if any) are not made and taken by the High Court, the result of such inquiry and the evidence shall be certified to such Court." With the utmost respect, it appears to us that the stage of the proceedings to which section 375 applies is different from, and anterior to, the stage of examination of the accused under sec tion 342, Cr. P. C. In other words, it is only when the circumstances appearing against .the accused have been fully determined that the accused can be called upon to explain them, and the object of section 375 is to ensure that all such circumstances have been properly elucidated. If any point in the evidence bearing upon the guilt or innocence of the accused requires further clarification, this Court has power to direct that a further enquiry be made into, or additional evidence taken upon, the point in question.

4. Two examples of the type of enquiry contemplated are dealt with in Queen v. Shaikh Mustafa (1 Suth W R Cr. 1) and Empress v. Pahuji (I L R 19 Bom. 195). In the former case the question was whether the accused was insane at the time he committed the murder of his wife. There was evidence that the accused had spoken like an insane man on the day previous to the murder, and the assessors held that the accused was not of sound mind. The High Court held that it was a "defect of enquiry" not to have placed the accused under medical observation, and directed the Court of Session to place the convicted person under medical observation for a month, and then forward the case to them, with the evidence of the medical officer and the opinion of the Sessions Judge. In Pahuji's case the prisoner had been convicted on the sole evidence of his con fession, which he alleged had been tutored by the Magistrate who recorded it. The High Court directed the examination of the Magistrate concerned on the question of the alleged tutoring.

5. Two provisions of section 375, Cr. P. C. also appear to us to have a bearing on the question of its scope. The first is that subsection (2) clearly lays down that the enquiry shall not be made nor shall the additional evidence to taken in the presence of jurors or assessors, although, if the examination of the accused under section 342, Cr. P. C. falls within the scope of section 375, we find it difficult to understand how the presence of the assessors could be dispensed with. The second circumstance is that unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when the enquiry is made or evidence taken. It is clear that if the examination of the accused under section 342 is one of the points into which enquiry can be made, his presence cannot be dispensed with and no discretion can vest in the Court.

6. We are further fortified 9n our view by the following observations of the learned Additional Judical Commissioner, Sind, in Emperor v. Hari and others (A I R 1935 Sind 145) that "with reference to section 375, Cr. P. C. it seems to me extremely doubtful that this provision of law is intended to apply to a case in which there has been illegality, or an error which has occasioned a failure of justice. Admittedly under sections 374 and 418(2), Cr. P. C. the whole case is re-opened before the High Court and the Court is re quired to go into the facts as well as the law, but I do not consider that section 375 is meant to enable a Court to remedy an Impor tant error in procedure which might have been calculated to prejudice the accused in the trial and which, in fact, causes the t trial to be vitiated."

7. Finally, although there has been a divergence of judicial authority on the question whether failure to comply with the mandatory provisions of section, 342, Cr. P. C. vitiates the trial in every case, all High Courts are, so far as we are aware, unanimous on the point that where prejudice has been caused to the accused, the proceedings are vitiated, the only course open to the superior Court being to order a retrial.

8. For the above reasons we are of the opinion that the question involved In this case, namely, whether section 375, Cr. P. C. can be invoked to cure an illegality arising out of non-compliance E with the provisions of section 342, is one requiring consideration by a larger Bench. We accordingly direct that the case be laid before the learned Chief Justice for necessary orders.

9. In conclusion we may state that Mr. Ismail Bhatti for the appellant requested that the Bench be constituted at Lahore. A. H. Appeal dismissed.