P L D 1967 Karachi 75 (PLP)

H. T. RAYMOND, J.‑The facts giving rise to this Criminal Acquittal Appeal are somewhat unique. The respondent Sardar Ahmed, son of Ghulam Nabi was being prosecuted in the Court of an A.C.M. at Karachi for an offence under section 448, P. P. C. On 7‑1‑64 the learned trial Magistrate framed a charge against him under section 448, P. P. C. and called upon him under section 255, Cr. P. C. to plead to the charge to which he pleaded not guilty. The learned Magistrate then acting under the provisions of section 256, Cr. P. C. called upon the respondent/ accused to state whether he wished to recall any of the prosecution witnesses for further cross‑examination after charge, and the respondent/accused replied stating that he required all the prosecution witnesses for further cross‑examination after charge. His statement was duly recorded as Exh. 6 and he was asked to sign the said statement which he did at first but a little later scored off his signature and subsequently refused to sign this statement. Thereupon the learned trial Magistrate took immediate Proceedings against him under section 480, Cr. P. C. read with section 180, P. P. C. and in the result convicted the respondent/accused for an offence under section 180, P. P. C. and sentenced him to pay a fine of Rs. 200 or in default to undergo S. I. for one month. The respondent filed an appeal against this conviction and sentence in the Court of Sessions, Karachi and on 4‑4‑64 the learned A.S.J., Karachi Mr. F. E. Ansari acquitted the respondent/appellant on the ground that an important ingredient of an offence under section I80, P. P. C., namely that the public servant concerned should legally be competent to require a person to sign such statement was missing in this case.

2. The present Acquittal Appeal has been filed on behalf of and under instructions from the Government of West Pakistan by Ch. Iftikharuddin Ahmed, A.P.P., Karachi and the main contention put forward on behalf of the State in support of this Acquittal Appeal is that the statements of an accused required to be taken under section 255/256, Cr. P. C. amount to an examination of the, accused within the meaning of section 364, Cr. P. C. and hence under the provisions of section 364 (2), Cr. P. C. the accused is bound to sign such a statement and his ‑failure or refusal to do so renders him liable under section 180, P. P. C.

3. We have heard the learned A.P.P. in support of this Criminal Acquittal Appeal. We have also had the advantage of the arguments of Mr. Muhammad Hayat Junejo and Mr. M. Halim as amid curiae which position they readily accepted at our request and by their submission have greatly assisted us in arriving at our conclusion on the point raised for determination in this Acquittal Appeal.

4. It appears from the charge levelled against the respon dent/accused by the learned trial Magistrate that the allegation against him was confined to his scoring off his signature at the bottom of his answer to a question put to him under section 256, Cr. P. C. and his subsequent refusal to sign this statement of his. The learned Additional Sessions Judge when dealing with the appeal of the respondent/accused has errone ously stated that be refused to sign his Plea as well as his statement under section 256, Cr. P. C. and this error has been perpetuated in the memo of appeal under section 417, Cr. P. C. filed by the A.P.P. on behalf of the State, and in the two orders of this High Court admitting this appeal to a regular hearing and appointing amici curiae to assist the Court. But, the charge makes it clear that the respondent is accused only of refusing to sign Iris statement under section 256, Cr. P. C. and we may here make it clear that we are dealing with this matter only so far as this particular charge relating to section 256, Cr. P. C. is concerned, though, in doing so: we shall, in passing also refer to section 255, Cr. P. C.

5. In the course of the arguments before us our attention was drawn to certain sections of the Criminal Procedure Code which expressly require the signature of the person concerned. Thus, section 154, Cr. P. C. specifically states that every information relating to the commission of a cognizable offence whether given orally to an officer‑incharge of a police station or reduced by him to writing shall be signed by the person giving it. Similarly, section 200, Cr. P. C. requires a Magistrate taking cognizance of an offence on a complaint to examine the com plainant upon oath and to reduce the substance of such examination to writing which writing shall be signed by the complainant. Yet, no such provision for signature exists in the language of either section 255, Cr. P. C. when a plea is recorded or in the language of section 256, Cr. P. C. when the accused answers the question‑ whether he wishes to cross‑examine any and, if so, which of the witnesses of the prosecution whose evidence has been taken. Next, in order of sequence comes section 342, Cr. P. C. which empowers a Court at any stage of an enquiry or trial without previously warning the accused to put to him such questions as the Court considers necessary for the purpose of enabling him to explain the circumstances appearing in the evidence against him. This section further makes it compulsory for the Court after the witnesses for the prosecution have been examined and before the accused is called upon for his defence to question him generally on the whole case. Thus, section 342, Cr. P. C. invests a Court with power to question an accused person so as to furnish him with an opportunity of explaining any cir cumstance appearing in the evidence against him. Section 364, Cr. P. C. deals with the mode of examination of an accused under section 342, Cr. P. C. and provides how such examination under section 342, Cr. P. C. is to be recorded. This section further provides in sub‑clause (2) that when the examination has been completed and the whole is made conformable to what the accused declares is the truth the record shall be signed both by the accused and the Magistrate or Judge. Thus, the point of impor tance that has arisen for consideration in this Acquittal Appeal is whether the statement‑of an accused person under section 255 or section 256, Cr. P. C. can be said to be his examination or to form a part of his examination by the Court for, it is only if the answer to this question is in the affirmative that the accused can be compelled under the provisions of section 364(2), Cr. P. C. to sign such statement. Now with regard to the plea under section 255, Cr. P. C. such plea of guilty or not guilty can never be taken to be a part of the examination of the accused because on general principles a plea is one thing and an examination of an accused another, and if authority were sough for this distinction between plea and examination the same is to be found in the provisions of section 263 (g), Cr. P. C. which refers to "the plea of the accused and his examination (if any)". Nor can a statement under section 256, Cr. P. C. in reply to the question as to which witness should be recalled for cross‑examination after charge be considered as an examination of the accused because this is a simple question 'of procedure and one that does not touch the circumstances appearing in evidence against the accused or the merits of the case as against him. It seems to us, therefore, that it would be erroneous to hold that a statement made by an accused person in reply to the question put to him under section 256, Cr. P. C can be considered to form a part of his examination so as to require his signature in accordance with the provisions of section 364(2), Cr. P. C.

6. The next question that arises for consideration in this Acquittal Appeal is whether a refusal on the part of an accused person to sign a statement under section 256, Cr. P. C. con stitutes an offence under section 180, P. P. C. Now, dealing with this question which was raised before us in the course of the arguments it is of course quite obvious that if there is no com pulsion on securing the signature of the accused his refusal so to do cannot make him guilty of an offence under section 180, P.P.C. As pointed out by the learned A.S.I, Karachi an essential ingredient for an offence under section 180, P. P. C. is that the public servant concerned should legally be competent to require a person to sign a particular statement. Two cases one of the Bombay High Court and the other from lower Burma were cited before us in support of the submission that the provisions of sub‑clause (2) of section 364, Cr. P. C. are merely directory and not mandatory. In the case of Imperatrix v. Sirsapa (I L R 4 Bom. 15) it was held that an accused person who refuses to sign a statement made at his trial in answer to a question put by the Court commits no offence punishable under section 180, of the Indian Penal Code. In this case there was a division of opinion between the two Judges constituting the Division Bench, Mr. Justice Melvill being of opinion that the trial Court was legally competent to require that the prisoner should sign the statement and hence his refusal to do so constituted an offence under section 180, P. P. C. On the other hand, Mr. Justice Kemball took a contrary view. The case was then referred to the Chief Justice of Bombay Sir M. R. Westropp who agreed with Kemball, J. and held that the conviction of the accused in that case should be quashed and the fine, if paid, returned. In the case of the Emperor v. Batin (24 Cr. L J 205) the Chief Judge stated‑ "It appears, to me that the provision 'of subsection (2) of section 364 of the Code of Criminal Procedure as to an accused signing the record of his examination is merely directory of what the procedure should be. The section itself says that the record shall be signed by the accused, but it imposes no penalty on him if he does not sign it." It was therefore held that an accused person who refuses to sign the record of his examination by the Court does not commit an offence punishable under section 180, I. P. C. Our attention was also invited to two cases of the Allahabad High Court reported in A I R 1917 All. 48 and A I R 1935 All. 652 in which the contrary view was taken that the provisions of sub- clause (2) of section 364, Cr. P. C: are mandatory and make it compulsory upon the Magistrate as well as upon the accused to sign his statement and that if an accused person refuses to do so he commits an offence under section 180, I. P. C. But, for the purposes of deciding the point raised in this Acquittal Appeal we are, as it were, uninfluenced by these two decisions of the Allahabad High Court for the simple reason that in our view, as already expressed above, a mere statement under section 256, Cr. P. C. as to which witness should be recalled for cross‑examination after charge is not and can never amount to an examination of the accused so as to bring it within the purview of section 364, Cr. P. C. The examination of an accused person under section 342, Cr. P. C. is no doubt subject to the procedure prescribed in section 364, Cr. P. C. as held in I L R 10 Mad. 295, I L R 39 All. 399 and I L R 10 Born.

166. But, in our opinion, the statement of an accused person under section 256, Cr. P. C. is not the same as his examination under section 342, Cr. P. C. and is, therefore, uncontrolled by section 364, Cr. P. C.

7. In the result, then, we find no force in this Criminal Acquittal Appeal which is hereby dismissed. K. B. A. Appeal dismissed.