P (PLP)

SHABIR AHMAD, J.‑Muhammad Ali son of Fateh Ali, Nura son of Ahmad and Mamoon son of Begu, along with three others, were trade by Mr. S A. Nasir, Additional Sessions Judge, Mont gomery, for an offence under section 396 read with section 397 of the Pakistan Penal Code with the result that all were acquitted of the offence for which they were tried, but Muhammad Ali was convicted under section 412, Pakistan Penal Code, and sentenced to three years' rigorous imprisonment. Against his conviction Muhammad Ali has presented an appeal and Ghulam Muhammad, who was the victim of the dacoity, has presented a revision petition to have Muhammad Ali convicted under section 396397, Pakistan Penal Code, or, at any rate, for the enhancement of the sentence passed on him. In the revision petition there is also a. prayer that as the acquittal of Nura and Mamoon was wrong, they lie dealt with in accordance with law. This order will cover the appeal and the revision petition. The allegations of the prosecution were that the six men sent up for trial and one Nausher, who is an absconder, had at about 9 p. m. on the 28th of October 1947, committed a dacoity at the house of Ghulam Muhammad, and some of the dacoits fired at the villagers with the result that a woman was hit with a bullet and died of the injuries, and some other villagers received simple injuries caused with blunt weapons. At the trial the main evidence against the accused persons was the statements of witnesses who claimed to identify five out of them, i. e., all but Mamoon son of Begu, corroborated by the evidence of those witnesses having identified the accused at identification parades. Against Muhammad Ali appellant, in addition to the evidence' of identification, there was the evidence that some ornaments and clothes stolen at the dacoity were recovered from him. The prosecution case was that on information received. the police lay in ambush near Barala canal bridge at about 4 a. m. on 7th of November 1947 and arrested the appellant, who was riding a mare and carrying a part of the stolen property in a bag, which was on the back of the mare. I will first of all deal with the petition for revision in. so far as it is against the two acquitted persons. An order of acquittal cannot be altered into one of conviction by the High Court except where an appeal by the Provincial Government has been presented under section 417 of the Criminal Procedure Code, but the High Court can, in exercise of its powers of revision, set aside an order of acquittal and order a re‑trial. In cases where the order of acquittal is passed by a Court hot having jurisdiction or is based on an incomplete record of evidence, or is against any provisions of law, no difficulty arises because in such cases the order of acquittal can be set aside and a re‑trial ordered without any prejudice being Caused to the accused person. In case where the order of acquittal is passed by a Court of competent jurisdiction and in which the entire evidence of the prosecution has been recorded, the High Court should be reluctant to order a re‑trial in revision because such an order means practically a direction to the Subordinate Court to which the case is sent, to convict though, because of the absence of an appeal under section 417 of the Criminal Procedure Code, the High Court itself would not be competent to alter the acquittal into conviction. Mr. Muhammad Amin Khan, the learned counsel for the petitioner, did not contend that the order of acquittal in favour of Nura and Mamoon was passed by a Court not having jurisdiction, nor that the entire evidence, which the prosecution wanted to lead, was not taken, nor that the order of‑ acquittal was based on a mis-interpretation of any provision of law, but urged that, on the evidence on the record, the order of acquittal was not justified. I have already mentioned the cases in which the High Court should interfere with the order of acquittal on a revision petition, and as the present case does not fall within the category of those cases, the revision petition should not, in my opinion, be accepted. I might add that Mamoon son of Begu was not identified by any of the prosecution witnesses and the revision petition against him was entirely misconceived: I am therefore of the view that the revision petition put in by Ghulam Muhammad, in so far as it relates to Nurawand Mamoon, merits dismissal. This leaves the appeal of Muhammad Ali and the revision petition against him to be dealt with. Mr. Manzur Qadir, the learned counsel for the appellant, questioned the correctness of the prosecution evidence about the arrest of the appellant at 4 a. m. on 7th of November 1947 near Barala canal bridge and also of the evidence of the prosecution witnesses who identified the articles alleged to have been recovered from the possession of the appellant, as a part of the stolen property. It was contended by the learned counsel that;. in any case, the appellant was entitled to an acquittal because the trial Court had not given him an opportunity to explain that part of the prosecution evidence on which the conviction had "been based. The‑learned counsel complained that his client was never asked if the articles were recovered from him at the place mentioned by the prosecution witnesses and whether or not, they belonged to him, as required by section 342 of the Code of Criminal Procedure. The learned counsel for the Crown replied that, though the appellant had not been asked specific questions about the articles alleged to have been‑recovered from him but as he was asked general questions about the whole case, the provisions of section 342, Criminal Procedure Code, had been complied with. In order to judge whether or not the provisions of section 342, Criminal Procedure Code, had been complied with, the questions which the trial Court asked the appellant at the conclusion of the prosecution evidence may be examined. These questions were: (1) After, hearing the prosecution evidence have you anything to add to your previous statement ? (2) Will you adduce defence evidence ? The previous statement referred to in, the first of the above two questions was the statement which the appellant made at the commencement of the trial 'under section 242 of the Code of Criminal Procedure as, because of the provisions of sections 35 and 37 of the Punjab Public Safety Act, 1947, the case was tried as a summons case. At the commencement of the trial the questions put to all the six accused persons were the same, and even at that time the attention of the appellant was not drawn to the fact that the prosecution alleged that a part of the stolen property was recovered from him. Subsection (1) of section 342, which reads as follows :‑ "For the purpose of anabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him, generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence". Consists of two parts, the first which empowers the Court, at any stage of the trial, to ask any questions from the accused to enable him to explain the circumstances appearing in evidence against him, and the second which makes it the duty of the Court to give an opportunity to the accused to explain the circumstances appearing in evidence against him. The second part of subsection (1) is imperative and appears to have been enacted to give the accused person an opportunity to show t9 the Court that what is being considered to be against him, is in reality not so. Section . 342 of the Code of Criminal Procedure has been the subject of judicial interpretation, in some cases, but I do not consider it necessary to refer to any of them, except a decision of their Lord ships of the Privy Council reported as "Dwarkanath v. Emperor", A. I. R. 1933 P. C. 17,

4. The relevant remarks occur at page 130 of the report and are to the following effect :‑ "Section 342, Criminal Procedure Code, provides, that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court shall question him generally on the case after the witnesses for the prosecution have been examined. In pursuance .of this section one of the puisne judges put questions, to the doctor. The only questions put on the contents of the post‑mortem report were* * * * * The other question is a general question .whether there was anything else he desired to say about the charges or the evidence. The learned Chief Justice told the jury that. the absence of blood in the body cavity was a vital point. If so it is plain that under section 342 of the Code it was the duty of the examining judge to call the accused's attention to this point and ask for an explanation. * * * * * But it deprives of any force the suggestion that the doctor's omission to explain what he was never asked to explain supplies evidence on which the jury should infer that six months before he had consciously abandoned a theory which four months before that he honestly held". In the present case the trial Court has rejected entirely the evidence about. the identification of the accused and has only relied on the‑ evidence of recovery, and as the accused person was not asked to explain the circumstances appearing against him, the mandatory provision of section

342. Criminal Procedure Code; cannot be said to have been complied with. It is regrettable that in spite of the fact that the accused person was not asked any question about the recovery, the trial Court remarked in the judgment that the accused bad bat claimed the ornaments and the articles of clothing recovered from him as belonging to him, nor had he cared to offer any explanation show he came by these articles, and appears to have used the omission as a circumstance which pointed to the guilt of the accused. Learned counsel for the Crown argued that it was open to the accused to give any explanation he liked when the general question was asked from him. No doubt it was open to the appellant to offer on explanation about the articles alleged to have been recovered from him but that did not do away with the duty of the Court to draw the attention of the accused person to the circum stances which were to form the basis of his conviction. It is possible that in some cases the general question of the type asked in the present case may be a sufficient compliance with the provisions of subsection (1) of section 342, Criminal Procedure Code, but it is obvious that in the present case it was not. By the time the entire prosecution evidence has been recorded, the trial Court is in a position to have formed an opinion as to which of the circumstances appearing in the evidence are likely to lie considered by it to be proof of the guilt of the accused person; and these circumstances .the accused must be given a chance to explain. It is unnecessary that the attention of the accused be drawn to every bit of the prosecution evidence, but in practice there can be no difficulty in drawing attention of the accused to the more important circumstances against‑him. After fully considering the matter I am of the opinion that the provisions of section 342, Criminal Procedure Code, were not complied with, and it only remains to decide what order should be passed. I am not prepared to accept the contention of the learned counsel for the appellant that the appellant should, because of the omission of the trial Court to comply with the provisions of section 342, Criminal Procedure Code, be acquitted, but I am of the view that additional evidence in the form of the statement of the accused person and any evidence that he might want to produce in defence; is absolutely necessary for a proper decision of the case, and, therefore, acting under section 428 of the Criminal Procedure Code, I send the case to the Sessions Judge, Montgomery, with the direction that he will afford the appellant an opportunity to explain the circumstances appearing in the prosecution ' evidence against him, and record such evidence as the appellant may produce in defence. The evidence so recorded shall be certified to this, Court at an early date, and the appeal and the revision petition in so far as it is against the appellant, will be disposed of when the additional evidence has been received. The revision petition in so far as it relates to Nura and Mamoon is dismissed. The appellant was convicted on 12th of February 1948 and as the decision of the appeal has been delayed due to no fault of his, I allow the appellant bail, till the decision of the case by this Court, in the sum of Rs. 2,000 with two sureties in the like amount to the satisfaction of the District Magistrate, Montgomery. MUHAMMAD SHARIF, J.‑I agree. K. M. A./A. H. Case remanded.