P L D 1952 Lahore 374 (PLP)

MUHAMMAD MUNIR, C.J.‑This is an appeal from a con viction and a sentence of death. The appellant is Shammun who has been found guilty of having murdered Lal on 13th April, 1951. The main evidence against the appellant was a confession which he is alleged to have made on 15th April, 1951, to Lal (P. W. 10). But this confession was not put to the appellant under section 342 of the Code of Criminal Procedure either when he was examined by the Committing Magistrate or when he was questioned at the trial after the close of the prosecution evidence. On the authority of Rahim Bakhsh v. Crown P L D 1952 F C 1, therefore, this conviction is unsustainable. We set aside the conviction and the sentence and order the appellant to be retried from the stage when he was examined by the Additional Sessions Judge after the close of the prosecution case. The learned Judge will specifically put the confession to him and ask him whether he made that confession and, if so, in what circumstances. It is high time that Sessions Judges and Magistrates under stood and rightly applied the provisions of section 342 of the Code of Criminal Procedure. Proper questioning of an accused person is an essential constituent of a fair trial and is as neces sary as the framing and explaining of the charge to him or putting to him the precise accusation against him. In the present case, the learned Additional Sessions Judge did no more than put to the appellant his statement recorded by the Com mitting Magistrate and ask him whether he had mane that statement, whether the statement was correct and whether he had anything more to say. This procedure does not comply with the provisions of section 342 and is definitely unsatis factory, as it is the duty of the Sessions judge to put to the accused every specific circumstance appearing in the prosecu tion evidence, with a view to giving him an opportunity to furnish such reply to of explanation of it as he may wish: The evidence at a trial is not always precisely the same as at the enquiry. But even if the prosecution evidence at the trial may be the same, it is clearly the duty of the Sessions judge himself to question the accused generally on the case. Further, the putting of the entire prosecution case to an accused in a single composite and highly involved question must be avoided, because any such question is likely to bewilder and confuse him. The real object of questioning the accused is that he should know what the precise case against him is and what the evidence in support of it is. Therefore, the precise act alleged against him must be brought out in his examination and if he is being made liable for an act done by another person, whether that person is being jointly tried with him or not, he must be informed of that legal position. But every omission or irregularity in the examination of an accused person does not vitiate the trial because section 537 of the Code of Cri minal Procedure applies to such omissions and irregularities and no conviction can be‑set aside on the ground of defective examination of the accused unless it has in fact occasioned a failure of justice. This in each case is a question of fact to be determined by the Appellate Court on the circumstances of the particular case. But when the irregularity is so gross and palpable that it amounts to a complete disregard or violation of the provisions of section 342, the Appellate Court may pre sume a failure of justice on the broad principle that a necessary condition of fair trial was not observed by the trial Court. A. H. Retrial ordered.