P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

Six persons,, naively, Bashir Ahmad, his brother, Nazir Ahmad, their brother, Sana Ullah, their first cousin; Muhammad Latif, and the sisters' sons of Bashir Ahmad, namely, Abdul Majid and Basharat, were tried under section.302/149 of the Pakistan Penal Code for the murder of Sardar Ali with the result that found guilty of the offence Bashir Ahmad, Nazir Ahmad and Muhammad Latif were sentenced to death, while the other three were awarded a sentence of transportation for life. The six convicted persons have presented this joint appeal through Chaudhri Nazir Ahmad‑ Khan, Advocate, while Mr. S. M. Tirmizy, the then Additional Sessions Judge, Gujrat, who passed the above sentences on the 16th of July 1959 has, as required by section 374 of the Code of Criminal Procedure, referred the case to this Court for confirmation of the sentences of death passed by him. In addition there is a petition for. revision (Criminal Revision No. 1230 of 1959) presented by Nasrullah, a nephew of Sardar Ali praying for the enhancement of the sentences of Abdul Majid, Basharat and Sana Ullah. This revision petition came up for hearing before Justice Abdul Aziz Khan and Justice J. Ortcheson on the 4th of December 1959 and the order passed was that it should be head along with the criminal appeal. The appeal, the reference for confirmation and the revision petition will be disposed of by this order.

2. The prosecution case against the appellants was that they had, formed themselves into an unlawful assembly, of which four members, namely, Bashir Ahmad, Nazir Ahmad, Sana Ullah and Muhammad Latif, were armed with kulharis, while: the other two were armed with dangs and in the prosecution of the common object of that assembly, caused injuries to Sardar Ali, a resident of Makwal, to which village the six appellants also belong. The motive was stated to be that a daughter of Ata Ullah, a brother of Bashir Ahmad, Nazir Ahmad and Sana Ullah, was abducted by Muhammad Akhtar, a nephew of Sardar Ali, and when Sardar Ali was approached for the return of the girl, he, instead of acceding to the request, had the marriage of the girl and Muhammad Akhtar solemnized. Another motive was stated to be that Mst. Sughra, the wife of Nazir Ahmad appellant, who was the niece of Sardar Ali, had left her husband's house about six months before the occurrence and had started living with her uncle. While in the house of her uncle she brought proceedings for getting maintenance from her husband, whereupon he divorced her.

3. The occurrence was stated to have taken place in village Makwal on the 19th of July 1958 at about 10 a.m. (described in the first information report as bhatewela) and a report with regard to it was made the same day at I p.m. at Police Station Kharian which is at a distance of about four miles from the scene of occur rence by Nasrullah, a nephew of Sardar Ali. The informant said in the report that he was one of the eyewitnesses and that besides him the incident had been witnessed by Mst. Walayat Begum, the widow of Sardar Ali, and by Mumtaz. The report further detailed the weapons which each of the six appellants, who were mentioned as the culprits, was carrying at the time of the occur rence and also gave the motives ,mentioned above.

4. At the trial the prosecution produced Nasrullah (P. W. 2), Mst. Walayat Begum (P. W. 3) and Mumtaz (P. W. 4) as eye witnesses of the occurrence: Besides this direct evidence, the prosecution relied upon some recoveries. Evidence was led that on the 20th of July 1958, soon after his arrest, Sana Ullah appellant gave information which led to the recovery of a kulhari, on the same day Abdul Majid produced a bloodstained sota from his house and on the same day a bloodstained kulhari was recovered from the house of Muhammad Latif appellant. The report of the Serologist to the Government of Pakistan, which is Exh. P. T. on the record, shows that all these three weapons bore stains of blood which was human in origin. Bashir Ahmad appellant, who was in the service of the Military Department, was arrested on the 1st of August 1958 and on the 7th of August he was stated to have given information which led to the recovery of a kulhari from some bushes near the Banni Rest House in the Pabbi Hills. The report of the Serologist, which is Exh. P.R. on the record; shows that the weapon was not stained with human blood. Evidence was also led by the prosecution with regard to the two motives which, accord ing to them, had led to the murder of Sardar Ali.

5. When questioned by the Committing Magistrate to explain the circumstances appearing in the prosecution evidence against them, all tine appellants said that they were innocent and tad been falsely implicated. Bashir Ahmad appellant stated that on the dad of the occurrence he was working in his Unit which was posted in Muzaffarabad, a district of Azad Kashmir, and had been falsely named out of enmity, The statements of the six appellants before the learned trial Judge did not add anything to their statements in the Court of the Committing Magistrate. Five witnesses were produced in defence. The first of these was Mst. Sughra who stated that she had all along been living with her husband Nazir Ahmad who had never divorced her and added that it was wrong to suggest that she was living with her parents. Major A. A. Farooqi, C. E., Senior Instructor of Military College of Engineering, Risalpur, who war commanding 77‑Field Company on the 19th of July 1958. was the second witness for the defence. He deposed that on the 19th of July 1958 Bashir Ahmad appellant was working under him anti as far as he, knew Bashir Ahmad appellant had not left his place of posting on the 19th of July 1958. Muhammad Akram Beg, Unit Accountant, of the office of the Garrison Engineer, Murree, was the third witness for the defence. he produced some muster rolls for the period 1st of July to the 31st of July 1958. These muster rolls were produced to prove that on the 19th of July 1958 Bashir Ahmad appellant, who was is charge of some gangs which were constructing some bridges, was present at his duty. The witness admitted that though ordinarily muster rolls should reach the head office by the 5th or the 6th of the month succeeding that to which they related, the muster rolls produced by him were entered in the bill book on the 19th of August 1958. The fourth witness for the defence was Riaz Husain Shah, Haveldar No. 2202494 of the Pakistan Works Section Engi neer, who deposed that from the 17th of June to the 30th of July 1958 Bashir Ahmad appellant worked under him in the Hajira area as a lance naik and was in charge of three gangs working on the construction of bridges. The witness added that the area under him was thirty‑four miles in length on which thirteen gangs were posted, three of which were working under Bashir Ahmad appellant and added that he checked the gangs of Bashir Ahmad on the 19th of July 1958 and had found Bashir Ahmad appellant present there. To a Court question the witness replied that the place meant for his initials on the muster rolls under dates other than the 9th, 15th, 19th, 22nd, 26th and 30th of July was blank. The fifth witness for the defence was Muhammad Khan, Haveldar No. 305330 of B‑Company, 3, Azad Kashmir Batallion. He deposed that ration for the 19th of July 1958 for Bashir Ahmad appellant had been taken but bad to admit that this ration was taken six days earlier. The learned trial Judge held that the defence evidence did not prove that the allegations of the prose cution against the appellants were false.

6. Before the case is dealt with on merits it is necessary to determine whether the trial Judge committed an error or omission in the recording of the statements of the appellants and, if so, what the effect of it was. The Committing Magistrate asked the appellants a number of questions in order to enable them to explain the circumstances appearing in the prosecution evidence against them. As mentioned already the replies of each of the appellants to these questions amounted to a plea of not guilty and it was pleaded by each of them that he had been falsely implicated. When the prosecution evidence finished before the learned trial Judge, he did not make a detailed examination of the appellants but asked each of them three questions. These questions and the answers thereto were as follows :‑ Q.‑Did you make the statement before the Committing Magistrate on the 14th of January 1959 which has just now been read out to you ? A.‑‑Yes. Q.‑Have you anything else to say ? A.‑No. Q.‑Would you produce defence? A.‑Yes. It will be noticed that the learned trial Judge asked none of the appellants definite questions about the circumstances appearing in the prosecution evidence against him and left it to him to make a detailed statement if he chose to do so. The question whether such an examination of an accused person in the Court of Session is permitted by law attains quite some importance because in their judgment dated the 1st of April 1960 in Criminal Appeal No. 666 of 1959, Fazal etc. v. The State (P L D 1960 Lah. 547) a Division Bench of this Court consisting of Justice Abdul Aziz Khan and Justice A. R. Khan took the view that an examination by a Sessions Judge of the kind of which it was in the present case does not comply with the pro visions of law and the same learned Judges sitting as a Division Bench took the same view in Criminal Appeal No. 741 of 1959 which they disposed of on the 22nd of March 1960, both these appeals being against the orders of Mr. S. M. Tirmizey, the trial Judge in the present case. The learned Judges held that if the Sessions Judge did not ask the accused person questions about every circumstance which appeared in the prosecution evidence against him but contented himself with questioning the accused whether he had made before the Committing Magistrate the state ment read out to him and whether he wanted to say anything further, there was no compliance with the provisions of section 342 of the Code of Criminal Procedure.

7. In the letter of the two cases to which a reference has been made in the last paragraph the appeal of the accused had been accepted as they were held not to have been proved guilty and the remarks with regard to the effect of the omission of a Sessions Judge to make a detailed examination of the accused were but obiter dicta but in the former case a retrial from the stage at which section 342 of the Code of Criminal Procedure had come into play was ordered. It is not without some interest that in the present case Chaudhry Nazir Ahmad Khan, the learned counsel for the appellants did not support the view taken by Abdul Aziz Khan and A. R. Khan, JJ. in Fazal etc. v. The State, but Mr. Fazle Ghani, Advocate, who appeared for the State relied on the judgment and urged that retrial from the stage at which after the close of the prosecution evidence the accused persons in the present case were questioned was absolutely essential because an illegality had been committed. If the decision of Abdul Aziz Khan and A. R. Khan, JJ. in Fazal etc. v. The State is binding on this Bench, it is clear that a retrial of the accused from the stage at which their statements were taken by the learned Sessions Judge will have to be ordered. With regard to the extent of the binding nature of decisions of the High Court on itself there is as far as I know, no statutory provision in the laws applicable to Pakistan but judicial decisions have laid down certain principles. These may be summarised as under:‑-- (1) The decision of a Full Bench of the Court cannot be dissented from by a Division Bench or a Single Bench, (2) the decision of a Division Bench of the Court cannot be dissented from by a Single Bench, (3) the decision of a Division Bench of the Court can be dissented from by another Division Bench or even by the same Bench and may be overruled by a Full Bench but it cannot be dissented from by a Single Bench, and (4) the decision of a Single Bench can be dissented from by another or the same Single Bench and can be overruled by a Division Bench or a Full Bench.

8. I have carefully gone through the judgment in Fazal etc. v. The State which was written by Abdul Aziz Khan, J. with whom A. R. Khan, J. agreed and find that almost the entire reliance was on cases decided previously and Abdul Aziz Khan, J. did not but at one or two places express his own view on the question that arose. Of the twenty‑six cases referred to in their judgment, twenty‑two dealt with section 342 of the Code of Criminal Procedure and from most of these twenty‑two cases the judgment of Abdul Aziz Khan and A. R. Khan, JJ. contains copious quotation. In these circumstances it is necessary to examine whether the decisions on the basis of which Abdul Aziz Khan, J. and A. R. Khan, J. held that the omission of the Sessions Judge to take a detailed statement of the accused person vitiates the trial from the stage at which the statement was taken did take that view and if they did whether that view was sustainable.

9. The first case referred to by Abdul Aziz Khan, J. and A. R. Khan, J. is Dinu v. Emperor (83 I C 895). The facts of this case were that the committing Magistrate had not made a detailed examination of the accused person but the Sessions Judge to whom the case was committed had done so. It was remarked that it is for the Sessions Court to conform to the provisions of section 342, Criminal Procedure Code, and if this is done, the failure of the committing Magistrate to examine the accused does not vitiate the trial. It is obvious that this case had absolutely no application to the facts of the case before the learned Judges. The second case referred to by the learned Judges was Chula v. Emperor (1 P R 1918). This was an appeal presented to the Punjab Chief Court against the order of a District Magistrate convicting two persons under section 380 of the Penal Code. It is obvious that no question of the kind which arose before Abdul Aziz Khan, J. and A. R. Khan, J. arose in this case. The third case referred to was Haji Muhammad Bakhsh v. Emperor (A I R 1922 Lah. 45). This was a reference made under section 435 of the Code of Criminal Procedure to the High Court of Judicature at Lahore in a case in which a conviction had been recorded under section 447 of the Penal Code against three persons. The trial had been held by a Magistrate and consequently it need hardly be said that the case had no application to the facts which fell for determination in the case before Abdul Aziz Khan, J. and A. R. Khan, J. The fourth case referred to was Nanak Chand v. Crown (A I R 1924 Lah. 734). This again arose out of a trial by a Magistrate and the decision even if correct could be of little, if any, assistance in determining whether what was done by the trial Judge in the case before Abdul Aziz Khan, J. and A. R. Khan, J. was correct. The fifth case referred to was Ghaza Ali v. Emperor (A I R 1925 Lah. 288). This again was a case of a trial by a Magistrate and, therefore, had but little relevancy in determining the question that fell for determination by Abdul Aziz Khan, J. and A. R. Khan, J. The sixth case referred to was Muhammad Sadiq v. Emperor (A I R 1926 Lah. 51). This too was a case of a trial by a Magistrate and, therefore, had hardly any relevancy in a case in which on the trial was held by a Sessions Judge under Chapter XIII of the Code of Criminal Procedure. The seventh case referred to was Lachman Singh v. Emperor (A I R 1926 Lah. 551). In this case too the trial was held by a Magistrate and it need hardly be said that the decision could be of no assistance. The eighth case referred to was Fazal Ahmad v. Emperor (A I R 1926 Lah. 684). This too was a case in which the trial had been held by a Magistrate and the decision was, therefore, of no avail.

10. The ninth case referred to by Abdul Aziz Khan, J. and A. R. Khan, J. was Dwarkanath Varma and another v. Emperor (A I R 1933 P C 124). In this case their Lordships of the Privy Council remarked that it was not sufficient to put the accused a general question whether there was anything else which he desired to say about the charge or the evidence, but the question that arose in the case before Abdul Aziz Khan, J. and A. R. Khan, J. and which arises in the present case was not before their Lordships of the Privy Council at all. The trial in the case dealt with by the Privy Council had taken place before a Bench of the High Court at Patna under clause 17 of the Letters Patent of that Court and under section 194 of the Code of Criminal Procedure and there had been no proceedings of commitment under Chapter XVIII of the Code of Criminal Procedure. It follows, therefore, that the decision of their Lordships of the Privy Council had no application to the case before Abdul Aziz Khan, J. and A. R. Khan, J. The tenth case referred to by the learned Judges was 'Rahim Bakhsh v. Crown (P L D 192 F C 1). The remarks from this judgment which were relied upon were:‑ " It would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking him for his explanation when he was examined in Court." Here again the question that Abdul Aziz Khan and A. R. Khan, JJ. had to decide did not arise. The eleventh case referred to was Aminul Haque v. Crown (P L D 1952 F C 63). In that case, as is clear from page 70 of the report, the questions asked by the Sessions Judge were as under :‑ (1) You have heard the examination and the cross‑examina tion of the prosecution witnesses, what is your defence ? (2) Will you adduce evidence in defence ? It will be noticed that no reference was made in the examina tion to the statement before the committing Magistrate and consequently the decision of the Federal Court was not germane for the purposes of the case before Abdul Aziz Khan and A. R. Khan, JJ. The twelfth case relied upon was Abdus Salam Molla v. The Crown (P L D 1955 F C 129), in which it was remarked that it was wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something of which he was not given any notice and to which he was never required to give his own reply. It is obvious that nothing of the kind that occurred in the present case and in the case before Abdul Aziz Khan and A. R. Khan, JJ. had occurred in the case before the Federal Court and, therefore, this decision of their Lordships of the Federal Court had no relevancy. The thirteenth case referred to was Manawar Ahmad v. The State (P L D 1956 S C (Pak). 300). In this case there was no commitment proceeding and consequently the facts were so different from the facts that fell for determination that it had no relevancy. The fourteenth case referred to was Muhammad Ali v. The Corwn (P L D 1950 Lah. 239). This case was specially pointed out by Mr. Fazle Ghani, the learned counsel for the State, because I had written the judgment with which Muhammad Sharif, J. had agreed. This was a case triable by a Sessions Court which was tried as a summons case because of the provisions of sections 35 and 37 of the Punjab Safety Act, 1947, as was clearly mentioned .in page 242 of the report. No commitment proceed ings being necessary none had taken place and therefore, the case had no bearing. The fifteenth case relied upon by Abdul Aziz Khan and A. R. Khan, JJ. was Abdul Wahab v. The Crown (P L D 1955 F C 88). In this case too there were no commitment proceedings and it could hardly be said to be relevant. The sixteenth case referred to was Muhammad Yaqub v. The Crown (P L D 1956 F C 143). This was a case under section 420 of the Pakistan Penal Code which was tried by a Special Judge under the provisions of the Criminal Law Amendment Act. There were no commitment proceedings in the case and it had, therefore, but little relevancy.

11. The seventeenth case referred to by Abdul Aziz Khan and A. R. Khan, JJ. was Shammun v. Crown (P L D 1952 Lah. 374). The discussion of this case is in paragraph No. 13 of their judgment in the beginning of which paragraph Abdul Aziz Khan, J. has said that he was proceeding to consider cases in which the accused had been properly examined by the committing Magistrate but the Sessions Judge had not made a detailed examination of the accused. With all respect I will point out that the judgment relied upon, which is fairly brief, makes it clear in its first few lines that the main evidence on which the conviction had been based was an extra‑judicial confession of the accused about which he had not been questioned either by the committing Magistrate or by the Session Judge. It follows, therefore, that this case too had no relevancy. It was, however, mentioned in this judgment in a passage which has been reproduced in their own judgment by Abdul Aziz Khan and A. R. Khan, JJ. that the omission was an irregularity and as it was gross and palpable and amounted to a complete disregard of the provisions of section 342 of the Code of Criminal Procedure the Appellate Court could presume that the accused had been prejudiced. The eighteenth case referred to was Ali Shan v. The Crown (P L D 1953 Lah. 14). In this case the facts relating to examination of the accused by the committing Magistrate and the Sessions Judge were precisely the‑ same as in the case before Abdul Aziz Khan and A. R. Khan, JJ. In Ali Shan's case it was said by the Division Bench which decided it that in the circumstances of the case the omission of the Sessions Judge to make a detailed examination of the accused was an irregularity which could not be availed of by the accused in appeal because it had caused no prejudice. Abdul Aziz Khan, J. expressed the view that it was not possible to anticipate (sic) what the accused would have said if he had been questioned by the Sessions Judge and though he did not say so it appears that are did not agree with the view of the Division Bench that the omission of the Sessions Judge to make a detailed examination of the accused under section 342 was a mere irregularity if the committing Magistrate had made a detailed examination of the accused whose statement before the committing Magistrate was read out to him by the Sessions Judge who had afforded him an opportunity to say anything further that he wanted to say. The nineteenth case referred to was Muhammad Shafi v. The Crown (P L D 1954 Sind 141), a decision of a Full Bench, wherein it was held by majority of Judges that the omission of the Sessions Judge to make a detailed examination of the accused when the committing Magistrate had held a detailed examination was not such a departure from the mode of trial as may call for setting aside the conviction when there had not been a failure of justice. The twentieth case referred to was Tara Singh v. The State (AIR 1951SC441). The facts in this case would appear from the judgment of Abdul Aziz Khan and A. R. Khan, JJ. to have been taken to have a close resemblance to the facts with which these two learned Judges were dealing, but with all respect I will point out that this was not so and does not appear to be so even from the head notes of the report. Paragraphs No3. 21 and 28 of the judgment in Tara Singh's case make it clear that the evidence before the Sessions Judge went to a material extent beyond the evidence before the committing Magistrate and it follows that evidence which the accused had not bad an opportunity to explain had been used against him. That the procedure followed by the Sessions Judge by merely asking the accused whether his statement before the committing Magistrate was correct and whether he wanted to add to it though held to be an error was not held to be an incurable irregularity in all circumstances is clear from paragraph No. 30 of the judgment of Bose, J. who wrote the leading judgment which was concurred in by his three colleagues. In paragraph No. 30 of his judgment Bose, J. in the portion sidelined in the report at page 446 said‑ "I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of the opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice had been occasioned or is likely to have been occasioned. In my opinion the disregard of the provisions of section 342, Criminal P. C. is so gross in this case that I feel there is grave likelihood of prejudice." The twenty‑first case referred to was Moseh Kaka Chowdhry v. State of West Bengal (P L D 1956 S C (Ind.) 303). In this case the Sessions Judge bad asked the accused person questions which were not materially different from those asked by the Sessions Judge in the case before Abdul Aziz Khan and A. R. Khan, JJ., but it was not held by the Supreme Court of India that the error vitiated the trial. Abdul Aziz Khan, J. reproduced the penultimate paragraph of the judgment of the Supreme Court of India in his own judgment and that paragraph is reproduced below :‑ "We are, therefore, not prepared to accept the argument of the learned counsel for the appellants in this behalf. In any case, an argument of this kind which would if accepted, necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. This cannot be entertained for the first time in an appeal on special leave". If the object of Abdul Aziz Khan, J. was to show that the Supreme Court of India had held the error to be an illegality which could not be cured I would respectfully point out that the paragraph reproduced above would show that the Supreme Court of India had taken the contrary view. If the error had been held to be an illegality the trial would have been bad irrespective of the fact that no prejudice was proved to have been caused to the accused and the fact that the learned Judges of the Supreme Court of India dismissed the appeal would clearly show that the error was held to be an irregularity which could be taken notice of only if there were proof that the accused had been prejudiced on account of the error. That the error was held to be an irregularity is clear from a paragraph of their judgment which occurs at page 310 of the report wherein it was said that before an accused can take advantage of the error of the Sessions Judge who made an incomplete examination of the accused and merely contented himself with asking the accused whether he wanted to add to his statement before the committing Magistrate he must prove that he has been prejudiced by the error. The twenty‑second case referred 'to by Abdul Aziz Khan and A. R. Khan, JJ. was a decision of a learned Single Judge of this Court in Muhammad Yaqub v. The Crown (P L D 1956 Lah. 174). This judgment has not even hinted that the error of the kind that was under consideration was an illegality necessitating a retrial.

12. After referring to the authorities which I have mentioned in paragraphs Nos. 6 to 11 above, Justice Abdul Aziz Khan said in paragraph No. 14 of his judgment that what the learned Sessions Judge had done amounted to a complete disregard of the provisions of section 342 of the Code of Criminal Procedure and added that in the words of Munir, C. J. in Shammun v. The Crown the Appellate Court may presume failure of justice and that according to their Lordships of the Privy Council in Dwarkanath's case it was a "miscarriage of justice." Now, I have already shown in paragraph No. 11 that Shammun v. The Crown was a case entirely different from the one which was dealt with by Abdul Aziz Khan and A. R. Khan, JJ. because the confession which was almost the entire basis of the conviction of Shammun had not been put to him and he had had no opportunity to explain the evidence against him. I have also shown in paragraph No. 10 that the decision of their Lordships of the Privy Council in Dwarkanath's case had no relevancy for the purpose of determining whether the omission of the Sessions Judge to make a detailed examination of the accused and his merely asking the accused if the statement which hey had made to the committing Court was correct and whether he wanted to add to that statement was not compliance with section 342, of the Code of Criminal Procedure. In these circumstances I find it difficult to agree with the extremely brief paragraph No. 15 of the judgment of Abdul Aziz Khan, J. which reads as follows:‑-- "Thus, in the case under consideration, the omission on the part of the Additional Sessions Judge to question the appellants is fatal (sic)."

13. That an examination of the accused by the Sessions Judge in a case which has been committed to him is essential is hardly open to question because section 342 of the Code of Criminal Procedure occurs in Chapter XXIV which is headed: "General provisions as to inquiries and trials", and it follows that it is the duty of a Sessions Judge in a case committed to him to give the accused an opportunity to explain the circumstances appearing in the evidence against him. In view of the language employed in section 342 of the Code of Criminal Procedure, I find no force in the contention raised by Chaudhri Nazir Ahmad Khan that an examination of the accused in a trial by a Court of Session was not essential. Chaudhri Nazir Ahmad Khan placed his reliance on subsection (1) of section 289 of the Code of Criminal Procedure, which reads as follows :‑ "When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he wishes to adduce evidence." Chaudhri Nazir Ahmad Khan said that the use of the words "if any" would indicate that the legislature did not intend that the statement of an accused person should be taken after the close of the prosecution case in trials held under Chapter XXIII of the Code of Criminal procedure. As I have already said, section 342 of the Code of Criminal Procedure is contained in Chapter XXIV which is applicable to trials as well as to inquiries and the mere fact that the language of subsection (1) of section 289 of the Code of Criminal Procedure is slightly ambiguous on the point whether or not taking the statement of the accused is necessary cannot make any difference. It is true that section 289 of the Code of Criminal Procedure occurs in Chapter XXIII which deals with trials by High Courts and Courts of Session in cases which have been committed by a Magistrate, but Chapter XXIV which follows Chapter XXIII is applicable to all trials and, therefore, I am clear in my mind that even in a case which is being tried after an order of commitment by a Magistrate a detailed examination of an accused person to enable him to explain the circumstances appearing in the prosecution evidence against him is absolutely E essential. If, however, the evidence led by the prosecution does not disclose a case against the accused or if the accused has pleaded guilty to the charge no real necessity for taking a statement of the accused would arise and it appears that the Legislature had such cases, in mind when they used the words t "if any" in subsection (1) of section 289 of the Code of Criminal Procedure.

14. The question whether the examination of the type that was held in the present case by the learned Sessions Judge is sufficient compliance with the provisions of section 342 of the Code of Criminal Procedure still remains to be determined. It is hardly open to question that the evidence which an accused person is to be called upon to explain is the evidence which is before the Court which has to hold the examination and not evidence which may have been given in the commitment proceed ings, but that does not conclude the matter because one has to consider what form the examination of the accused by the Court has to take. It cannot be doubted that a mere general question as to what the accused wanted to say with regard to the prosecu tion evidence cannot be considered to be compliance with the provisions of section 342 of the Code of Criminal Procedure, but no one can doubt that no hard and fast rules can be laid down as to the form of the questions that should be asked from the accused when examining him under section 342 of the Code of Criminal Procedure. Opinions with regard to the form of questions may differ in some cases, but if the circumstances appearing in the prosecution evidence against an accused person have been put to him so that he has been given an opportunity to explain them, no Appellate Court would consider the examination by the trial Court to be inadequate if the questions asked from the accused deal with all material evidence that can be used against him. This brings one to the question whether asking an accused person whether he had made before the committing Magistrate the statement read out to him and whether he wanted to add to that statement can be considered to be compliance with the provisions of section 342 of the Code of Criminal Procedure. Such an examination of the accused is not in accord with the provisions of section 342 of the Code of Criminal Procedure, but if the evidence at the trial is materially the same as that before the committing Magistrate, I should be reluctant to hold such an examination of the accused to be inadequate. I am not denying that the trial Judge should draw the attention of the accused to all the evidence which the Judge considers points towards the guilt of the accused. but if all the material circumstances were put to the accused in the Court of the committing Magistrate, the Sessions Judge who does not question the accused about the circumstances is no doubt guilty of an omission, but the omission would not be of the type which could vitiate the trial. If, however, the evidence before the trial Court is different from that before the Court of the commit‑I ting Magistrate, that is, if some evidence which was not on the record of the Court of the committing Magistrate has been brought on the record of the trial Court, the omission and to give the accused an opportunity to explain the additional circumstances would be an omission which cannot be overlooked because if that evidence is used against the accused, it would have been used without his having been given an opportunity to show that it was not entitled to any reliance. If, however, such additional evidence is not used against the accused, the omission of the trial Judge to strictly comply with the provisions of section 342 of the Code of Criminal Procedure stands on the same footing as his omission to make a detailed examination of the accused. Cases can arise in which the evidence before the trial Court does not contain some pieces of evidence before the committing Magistrate. In such cases the omission of the trial Judge to make a detailed examination of the accused would obviously be no worse than the omission to make a detailed examination where the evidence before the trial Court and the committing Magistrate is precisely the same.

15. It is true that if there is an omission to follow any pro vision of law, an error has been committed, but before an error can be taken serious notice of, it must be of a type which cannot be cured under the provisions of section 537 of the Code of Criminal Procedure. Section 537 of the Code of Criminal Procedure was enacted in order that omissions to follow the Code in unimportant details may not entail the necessity of a retrial. If, for example, the Code requires that a Magistrate shall sign the statement of a witness, the fact that the statement is not signed but only initialed by the Magistrate could not be considered to be an error of the type which would vitiate the trial. As pointed out by me in Ibrahim and another v. The State (P L R 1959 (2) 689 : P L D 1959 Lah. 715), section 537 of the Code of Criminal Procedure was intended to come into play in cases where a mandatory provision of the Code had not been complied with because if a Court has not complied with a pro vision which it was at liberty either to comply with or not nobody could say that it had been guilty of an irregularity. One is of course aware of irregularities which prejudice the accused person and one of them was dealt with by their Lordships of the Privy Council in the case of Subramania Ayyar v. The Emperor (I L R 25 Mad. 61) in which an accused person was tried at one trial for more offences than three and their Lordships remarked that it could be presumed that the accused person had been prejudiced in his defence by reason of the Court not following the provisions of the Code of Criminal Procedure with regard to, the mode of trial. Omissions of the trial Court to hold a detailed examination of an accused person under section 342 of the Code of Criminal Procedure are I not incurable by section 537 of the Code of Criminal Procedure but it will depend on the circumstances of each case whether or not the error was such as to be curable by that section.

16. That the omission of the kind under consideration in the present case was a curable irregularity is clear from Abdul Wahab v. The Crown (P L D 1955 F C 88) and even the passage of that judgment which was reproduced by Abdul Aziz Khan, J., makes it clear that though the accused had only been asked the question : "You have heard the examination and the cross‑examination of the witnesses. What is your defence 7", it was held by their Lordships that there had not been compliance with the provisions of section 342 of the Code of Criminal Procedure, yet no miscarriage or failure of justice having been proved, no occasion for interference arose It will be noticed that this was a case in which only one examination of the accused had taken place, and in spite of the fact that this examination was grossly inadequate and contravened the provisions of section 342 of the Code of Criminal Procedure, their Lordships of the Federal Court held that no retrial was necessary.

17. I will now address myself to the question whether or not the examination of the accused persons by the committing Magis trate in the present case was so adequate as to show that the omission of the learned trial Judge to ask them detailed questions with regard to the circumstances appearing in the prosecution evidence could not have caused them any harm. The evidence at the trial was in all material respects precisely the same as the evidence before the committing Magistrate and, therefore, the accused could not complain that they had been prejudiced by the omission of the learned trial Judge to bring every circumstance appearing in the prosecution evidence against them to their notice in order that they may furnish explanation. In one respect the examination of Bashir Ahmad appellant by the Court of the committing Magis trate was defective, because he was asked whether he had given information which led to the recovery of a hatchet stained with human blood, while in fact the hatchet, with regard to which Bashir Ahmad appellant is stated to have given information, was, as mentioned by me already, not stained with human blood. The learned Sessions Judge did not ask Bashir Ahmad Appellant whether he had given information with regard to the recovery of a hatchet which did not bear stains of human blood, but this omission on the part of the learned Sessions Judge to give Bashir Ahmad appellant an opportunity to explain a matter which could not be considered to have been dealt with by the committing Magistrate could not have acted to the prejudice of Bashir Ahmad appellant because the fact that a hatchet was recovered at his instance was not treated as a piece of evidence against him on account of the fact that the weapon bore no tell‑tale stains. Considering the circumstances of this case, I have arrived at the conclusion that the mere fact that the learned Sessions Judge did not make a detailed examination of the appellants at the conclusion of the prosecution evidence before him cannot entail the necessity of a fresh trial from the stage at which the learned Sessions Judge recorded the statements of the appellants.

18. I will now deal with the case on merits. The learned counsel for the appellants urged that the evidence produced in defence proved conclusively that Bashir Ahmad appellant had been falsely implicated and, therefore, the whole of the prosecution case must fail by reason of the fact that it was established beyond all reasonable doubt that one of the accused persons being entirely innocent, the prosecution witnesses could not be relied upon. Though I am not prepared to accept the contention of the learned counsel for the appellants that if one of the accused persons is proved to have been falsely implicated, all of the accused persons must be acquitted irrespective of the fact whether or not the Court comes to the conclusion that the evidence against all the accused is false, yet I am prepared to concede that in the circum stances of the present case if it is established that Bashir Ahmad appellant had been falsely implicated the whole of the prosecution case must fail. In paragraph No. 5 I have detailed the evidence on which Bashir Ahmad appellant placed his reliance. The evidence of Major Farooqi (D. W. 2) is of a general character and cannot, therefore, prove conclusively that Bashir Ahmad appellant was at his duty on the morning of the 19th of July 1958, when, according to the prosecution case, he was at Makwal participating in an attack on Sardar Ali deceased. The evidence of Muhammad Akram Beg (D. W. 3) is also inconclusive. The evidence of Riaz Hussain Shah (D. W. 4), however, if believed, would prove that on the morning of the 19th of July 1958, Bashir Ahmad appellant was working in Azad Kashmir and was not at Makwal. The learned trial Judge examined the evidence of Riaz Husain Shah (D. W. 4) carefully and arrived at the conclusion that it was not sufficient to rebut the evidence led by the prosecution with regard to the participation of Bashir Ahmad appellant in the attack on Sardar Ali and I see no ground to differ from that view. The fact that only a few of the entries bore initials of the witness while every one of them should have is not free from suspicion and it appears that the entry of the 19th of July 1958, was initialled by the witness in order to afford Bashir Ahmad appellant evidence of alibi. The evidence of Muhammad Khan (D. W. 5), as men tioned already, is of no avail to Bashir Ahmad appellant because, as admitted by the witness, the rations of Bashir Ahmad appellant for the 19th of July 1958, had been taken six days earlier. Then there is the deposition of Prem Nasir (P. W. 9), the booking clerk at the Railway Station Kharian whose statement that he saw Bashir Ahmad appellant at the Kharian Railway Station on the afternoon of the 19th of July 1958, is not proved to have been actuated by a desire to falsely implicate Bashir Ahmad appellant. I would, therefore hold that the alibi evidence of Bashir Ahmad appellant was rightly rejected by the learned trial Judge.

19. This brings me to the prosecution evidence against the appellants. This consists of the depositions of three eyewitnesses, namely, Nasrullah Khan (P. W. 2), Mst. Walayat Begum (P. W. 3) and Mumtaz (P. W. 4). Nasrullah Khan (P. W. 2) is a nephew of the deceased, while Mst. Walayat Begum is his widow. Mumtaz (P. W. 4), however, is related to both the parties, as his grandfather and the grandfather of Bashir Ahmad appellant and his two brothers were real brothers, and the witness has some relationship with the complainants also. There is nothing on the h record to show that he had any motive to give false evidence against the appellants and I do not see why he should not be treated as an unbiased witness. The statements of the three eyewitnesses taken together prove that all the six appellants took part in the fatal assault on Sardar Ali. This ocular evidence is corroborated in the case of Sana Ullah, Abdul Majid and Muhammad Latif appellants by the fact that Sana Ullah gave information which led to the recovery of a kulhari stained with human blood, while Abdul Majid gave information which led to the recovery of a stick stained with human blood, and a kulhari stained with human blood was recovered from the house of Muhammad Latif appellant. Evidence with regard to these recoveries was given by Muhammad Sarwar (P. W. 20) and the investigating officer, Qazi Safdar Husain (P. W. 21) whose deposi tions I see no reason for not accepting.

20. In view of what I have said above, I would hold that the trial suffered from no defect and that the prosecution bad succeeded in proving that all the six appellants took part in the attack on Sardar Ali. The dead body of Sardar Ali, when subjected to post‑mortem examination by Dr. Muhammad Azeem, Medical Officer, Civil Hospital, Kharian, on the 20th of July 1958 at about 8‑45 p.m., was found to have the following injuries :‑ (1) A vertical incised wound, 1 " x 1/8", and deep into the cranial cavity over the right part of the forehead. The lower end of the wound was touching the inner end of the right eyebrow. The frontal bone underneath was fractured. (2) A vertical incised wound, 3/4" x 1/8" and deep into the cranial cavity over the middle part of the forehead, 1/8' to the left of injury No.

1. Frontal bone was fractured underneath. (3) A curved incised wound, 1 " x 1/8", and deep into the cranial cavity over the left part on the forehead, 1" above the middle of left eyebrow. (4) An antero‑posterior incised wound, 1 " x 1/8" into scalp deep over the front part of the top of the head. (5) A contusion, 3 " x 2 ", over the middle part of the left side of the head. There were two punctured wounds over this area, each measuring " x 1/8" and deep to the cranial cavity. (6) An oblique incised wound, 4" x ", and deep into the cranial cavity over the backmost part of the left side of the head 1 " above the left ear. (7) An oblique incised wound, 1 " x 1/8", x 1/8" just behind the root of the left ear. (8) A cut 1/3" long over the middle of the posterior border of the left pinna. (9) A contusion mark, 3" x 2", over the prominence of the left cheek. The left maxillary bone underneath was fractured. (10) An incised wound, 2 " x 1/8", skin deep, over the top of the left shoulder. There was, a corresponding cut in his shirt. (11) A contusion mark, 9" x 6 ", over the upper and middle part of the back of the left side of the chest. The doctor said that when he removed the scalp he saw clotted blood covering the under‑surface of the scalp and the vault of the skull and that the whole of the frontal, left parietal and left temporal bones and the left part of the occipital bone as well as the front part of the right parietal bone were fractured into innumerable pieces and all the three cranial fosse at the base of the skull were fractured, while the anterior‑cranial fossa was smashed into pieces. The number and nature of injuries clearly indicate an intention to cause the death of the victim, and the conviction of the appellants under section 302/149 of the Pakistan Penal Code was, therefore, entirely justified and is upheld.

21. As regards the sentences awarded by the learned trial Judge, the minimum sentence prescribed by law for an offence of murder is transportation for life and, therefore, no power exists in the Court, even if it wanted to do that, of reducing the sentences of Sana Ullah, Basharat and Abdul Majid who have received the sentence of transportation for life. As regards the sentences imposed on Bashir Ahmad, Nazir Ahmad and Muhammad Latif, no interference is called for because it was a dastardly attack by heavily armed men on an unarmed man and the normal penalty for an offence of this character must be paid by the culprits.

22. This brings me to the petition for enhancement of the sentences. It appears to me that the learned trial judge was not justified on his own reasoning to award the lesser penalty to Sana Ullah because Sana Ullah was about 15 years of age. He took the age of Sana Ullah into consideration for not exacting the extreme penalty from him, but Sana Ullah was not so L immature as to deserve leniency. But as the sentence of trans portation for life was passed as long ago as the 16th of July 1959, and if a notice is issued to Sana Ullah at this stage to show cause against the enhancement of the sentence, the sentence of death if passed would be passed more than a year after the original M sentence was passed, I would refrain from taking action on the revision petition and would reject it.

23. I might make it clear that though I have held that the non‑compliance with the provisions of section 342 of the Code of Criminal Procedure did not in the circumstances of the present case require a retrial of the case, I am not to be understood to be hold ing that the procedure adopted by the learned trial Judge was not open to objection. When a Sessions Judge asks the accused questions to enable him to explain the circumstances appearing in the evidence against him the Judge should ask questions pointing out the circumstances to the accused and if that is not done the Judge would be acting against a provision of law and that position will not alter even if the Appellate Court comes to the conclusion that the omission is not an incurable irregularity.

24. The result is that the appeal of the six appellants is dismissed in its entirety as is the petition for enhancement of sentence presented by Nasrullah against Sana Ullah, Basharat and Abdul Majid, but the reference for confirmation of the sentence of death passed on Bashir Ahmad, Nazir Ahmad and Abdul Latif is accepted. SAJJAD AHMAD, J.‑

I agree with the order proposed by my learned brother. A.H. Appeal dismissed.