P L D 1954 Sind 141 (PLP)

VELLANI, J.‑(28th August 1953): ‑I regret to differ. The purpose of taking the statement of the accused in the Court of the Committing Magistrate under section 209 Cr. P. C. is to enable the accused to explain the circumstances appearing in the evidence against him so that the Committing Magistrate may decide whether to discharge the accused, to try the accused himself or to commit him to a Court of Session. The examination is confined to those circumstances which appear in the evidence against the accused on the record of the Committing Magistrate. After committal and during the Sessions trial, the state ment of the accused under section 209, Cr. P. C. is required under section 287 Cr. P. C. to "be tendered by the Prosecutor and read as evidence". When tendered and read, it becomes a part of the prosecution evidence to which in principle, the provisions of section 342 apply. As section 289 Cr. P. C. indicates, the examination of the accused under section 342 Cr. P. C. and the examination of the witnesses for the defence take place after the statement taken under section 209 Cr. P. C. has become a part of the prosecution evidence. Under the Code of Criminal Procedure, the accused is not a competent witness in his own behalf and cannot be heard. His only opportunity to explain the circumstances appearing in the prosecution evidence against him is that afforded under section 342 Cr. P. C. which enjoins that the Court shall question the accused for that purpose generally on the case after the witnesses for the prosecution have been examined, and before he is called on for his defence, and subsection (3) of that section states that "the answers given by the accused may be taken into consideration" at the trial. It must be noticed that the statement under section 342 is not evidence, and is to be distinguished from a statement recorded by the Committing Magistrate under section 209 Cr. P. C. which under section 287 Cr. P. C. has become prosecution evidence and has changed its character. The two statements are taken at materially different times and for different purposes, and at the trial are given different characteristic and have different uses. It is inadmissible therefore in cases involving questions relating to breach of section 342 or consequent failure of justice to refer to the statement of the accused under, section 209 Cr. P. C. as if it were the anterior part of his state ment under section 342 Cr. P. C. I do pot see that the cases in A I R (1951) Supreme Court 441 and A I R (1953) Supreme Court 76 or the previous decisions of the Chief Court of Sind have in effect considered this reasoning. The evidence which section 342 Cr. P. C. requires the Court to put to the accused to enable him to explain it, is that which is recorded at the trial in the Session Court. The evidence recorded in the committal proceedings finds no place therein unless admitted on the record of the trial Court under section 288 Cr: P. C. for other provisions of law, in which case it becomes a part of the evidence in the trial Court. I proceed on the assumption that the Committing Magis trate put all the circumstances appearing at the inquiry before him to the accused, recorded his answers and used them for the purposes mentioned in section 209 Cr. P. C. and begin now to consider whether the examination of the accused at the trial carried out the purpose of section

342. The trial judge has recorded three sets of questions and answers. They are:- Q.‑Your statement recorded in the lower Court has now been read out to you, was it correctly re corded ? A.‑Yes. Q.‑You have heard the prosecution evidence led against you in this Court, what have you to say ? A.‑I do not know anything about this incident. I know nothing. Q.‑Do you want to add to what you have stated in the lower Court? A.‑No, Sir. This record of the examination of the accused shows that not a single circumstance appearing in the evidence in the trial Court against the accused was put to him to enable him to explain it. As to his statement before the Committing Magistrate admitted as evidence under section 287 Cr. P. C. he was merely asked whether it was correctly recorded. The second question which is in general terms, refers to no circumstances appearing in the evidence against him, (while the third question appears to treat the examination of the accused in the trial Court as if it were a continuation of his examination under section 209 Cr. P. C. in the committal Court. The examination purports to be an examination under section 342 but in reality the questions put fail to carry out its purpose. No circumstance relevant to the incident mentioned in the charge has been put, and the answer that the accused knew nothing about the incident is at the most a denial of the commission of the act, the subject matter of the charge. Since it is manifest that the examination of the accused purports to be the one enjoined under section 342 Cr. P. C. but is not, the question arises whether the continuance of the trial from that stage was consistent with the provisions of the Code regulating Session trials. To hold that it was, implies assent to the proposition that the accused may be tried and convicted without being heard. I have reached the conclusion that in a case such as this, the continuance of the trial is one "conducted in a manner different from that prescribed by the Code" as in 28 O A 257=25 Mad. 61 which hues been considered in A I R (1947) P C

67. It has been said that the answer "I do not know anything about this incident. I know nothing" deals with the evidence against the accused which he had heard in the trial Court and upon which he or his advocate had cross‑examined or had had the opportunity of cross‑examining. If that were sufficient section 342 would not have been enacted in the terms it has been enacted. The question, however, to which the answer was given makes no reference to ‑‑the particulars of the incident or to the witnesses who deposed to them. It has been repeatedly held that in order to give the accused an effectual opportunity of explaining the circumstances appearing in evidence against him, they must be put to him specifically and with reasonable particulars. It has been said that the answer is a denial that the accused was implicated in the incident and that if the trial Court did not question the accused further no prejudice occurred. That contention appears unsound for if the circumstances had been put to the accused he may have been able to explain them with or without inconsistency, for the accused may have said what may have been found on closer examination to explain or meet the prosecution evidence. It, is hazardous and improper to anticipate or to speculate what the accused would or would not have said if these circumstances had been put to him. Nor is consistency enjoined upon the accused and the Court is not absolved of the duty to examine inconsistent statements of the accused. That accused persons make such inconsistent statements is a matter of common judicial experience. There is nothing in section 342 Cr. P. C. to absolve a Court from the duty to put to the accused the circumstance appearing in the evidence against him if he directly or indirectly denies his presence at the scene or the commission of the act the subject matter of the charge. Indeed, such direct or indirect denial in substance is the rule and it is precisely in such cases that the legislature intended that the accused shall have a real opportunity to explain the circumstances against him. The contention seeks to defeat the purpose of section

342. I am aware that an answer to a general question by the Court such as was put in this case may show that the accused had knowledge of the circumstance or circumstances appearing in the evidence against him though not put, and his answer may in whole or part deal with such circumstances, and that in cases where that has happened, Courts have held that the question which then arises is whether the accused has been prejudiced by other circumstances not having been put to him in his examination under section

342. Such cases follow the principle of Dwarkanath v. The Emperor (37GWN514=AIR(1933)PC124.). This however is not the case here. There is nothing in the statement of the accused denying knowledge of the incident or of anything, to indicate that at the time he made the denial he was dealing with any circumstance appearing in the evidence against him. The words "against him" in section 342 (1) are of basic importance. The accused is to be questioned to enable him to explain such circumstances as appear against him. The answer of the' accused denies knowledge of the "incident". Even if this case were taken as one in which the purpose of section 342 appears partly carried out, it is manifest that the circumstances which appeared in the evidence in the trial Court have not been put to the accused to enable him to explain them, and unless the denial by the accused of any knowledge of the incident absolves the trial Court of the duty to put these circumstances to the accused; it must follow that there has taken place a failure of justice within the meaning of section 537 Cr. P. C. It is a cardinal principle of judicial trials that no person shall be condemned unheard, to which principle section 342 Cr: P. C. gives statutory expressions. If then it has been breached in respect of most, if not all the circumstances appearing in the evidence against the accused, and it is not possible to find that the conviction can be sustained upon the evidence as to circumstances which were put or have been dealt with by' the accused in his answer's, there necessarily results such prejudice or injustice to the accused as occurred in Dwarkariath v. Emperor (supra). For these reasons I have reached the conclusion that the case should be remanded to the learned trial Judge sitting with the same jury, to enable him to examine the accused as section 342 Cr. P. C. requires. If the same jury cannot sit, there will be a fresh trial. MUHAMMAD BACHAL, J.‑(28th August 1953).‑The accused Muhammad Shafii son of Abdul Aziz was charged in connection with the murder of Abdul Sattar, before a learned Judge of this Court (Rahim Bakhsh, J.) sitting with a jury. A unanimous verdict of guilty was brought in by the jury against the accused under section 302 P. P. C. The case is before us by way of confirmation of the death sentence. The prosecution case in brief was that the deceased and the accused used to ply rickshaws on hire from Fida Muhammad, Manager of Star Rickshaw Factory, and stayed with Fida Muhammad in his but adjoining the factory. They were friends and used to mess together. The accused used to pay all his earning to the deceased, and had asked him not to associate with others, and that the murder occurred as a result of this. Fida Muhammad states in his evidence that, on the day of the incident, at about 10 a.m. the accused was sitting at .the door between his but and the factory. The deceased was repairing his rickshaw in the factory, and he was supervising the work. Muhammad Aslam was working in the shop and the boy Ghulam Nabi was sweeping tire ground. He heard the cry "I am killed". He saw the deceased entering his but and falling on the ground bleeding from his stomach and his intestines had come out. The accused, who was formerly sitting, was standing with a blood‑stained knife in his hand, and his eyes were red. He informed Sadiq Hussain police constable on duty. He came and snatched the knife from the accused. S. I. Riyasat Ali came within 5 minutes and found that the injured lead died. He sent Fida Muhammad Khan to the police station, where his first information was recorded at 10‑30 a.m. This account is corroborated by the first report lodged within 30 minutes after the incident, at Mithadar police station, by Aslam and the boy Ghulam Nabi, employees in the factory, who state that they heard a shriek, and looking round, saw the deceased falling in the but bleeding profusely and the accused standing a few paces from him with a bloodstained knife in his hand. Ghulam Nabi in the Sessions Court denied having seen the accused with a blood‑stained knife in his hand, but in his statement before the committing Magistrate, brought on record under section 288 Cr. P. C., he stated that the accused had a knife in his hand when he saw the deceased falling on the ground. Fida Muhammad, in his cross‑examination, denied that the deceased and Razak Kashmiri, who used to ply rickshaws on hire, had quarrelled on his presence at the time of the incident, though Muhammad Aslam stated that Razak was present at the time of the incident, he used to ply rickshaws on hire, stay in the factory and quarrel over money matters. Nawaz Khan and Sadiqur Hussain, who were constables on traffic duty about 25 paces from the factory, stated that when they came to the scene on the shouts of people and on the information of Fida Muhammad that the accused had killed the deceased, they saw the deceased lying on the ground and the accused standing with a blood stained knife in his hand, which was snatched by Nawaz Khan who arrested him. The injured died within 4 or 5 minutes after their arrival. Nawaz Khan prepared Mashirnama of the knife in the presence of Ahmed Mashir, who gave evidence in the case. The Chemical Examiner found human blood on the knife. S. I. Riyasat Ali came within 4 or 5 minutes after pre paration of the Mashirnama. He prepared a Mashirnama of the scene, where blood was found, as stated by Noor Muhammad Mashir. He searched the accused and found a copy of the photo of the deceased. He held the inquest, and sent the corpse to the Civil Hospital. The medical evidence showed that he had a deep injury caused by a knife on the stomach, omentum and intestines, which were individually sufficient' to cause death. The death was due to shock and bleeding, resulting from the injury to the stomach, intestines and omentum caused by a knife. The defence of the accused was bare denial of the prosecution case. As the learned advocate for the accused has argued that the trial was vitiated by the failure to comply with the provisions of section 342 Cr. P. C., it is necessary to set out in extenso the examination of the accused in the committing Magistrate's Court and the Sessions Court :‑ Statement of the accused in the lower Court "Q.‑Did you on 8th January 1952, stab Abdul Sattar to death in Star Rickshaw Factory near City Railway Station behind Cotton Exchange Building ? A.‑No. Q.‑Did Nawaz Khan, Police Constable snatch blood stained knife Art. A from your hand soon after you committed murder of Abdul Sattar at the place of offence? ' A.‑I do not know. Q.‑Were you arrested by the Police at the place of offence soon after Abdul Sattar was murdered by you ? A.‑I do not know. Q.‑Was your personal search taken by the police? A.‑Yes. Q.‑‑Was the photograph of deceased Abdul Sattar Exh. 11 recovered from your shirt pocket by the police on your personal search ? A.‑Yes. Q.‑Why do the prosecution witnesses state against you ? A.‑I do not know. Q. You have heard the prosecution evidence. Have you anything else to state ? A.‑I have nothing to say. Q.‑Did you and deceased Abdul Sattar use to live Star Rickshaw Factory ? A.‑Yes. Q.‑‑‑Did you use to pay all your earnings to Abdul Sattar deceased ? A . ‑‑I do not know. Q. Did you ask deceased Abdul Sattar not to associate, with others? A.‑‑I do not know. I will make my statement before Sessions Court". Statement of the accused in Sessions Court Q.‑Your statement recorded in the lower Court has now been read out to you, was it correctly re corded ? Yes. Q.‑‑You have heard the prosecution evidence led .against you in this Court, what have you to say? A‑I do not know anything about this incident. I know nothing. Q.‑Do you want to add to what you have stated in the L. C. ? A. No Sir". The learned Advocate for the accused has relied upon ding in Tara Singh v. The State (A I R 1951 S C 441,). But the facts in that case were different from the present case, and this case has subsequently been distinguished in several cases. At page 443 their Lordships pointed out "The next point taken regarding the committal stage of the case is that the committing Magistrate did not examine the appellant properly under sections 209 and 342 of the Cr. P. C. Section 342 (1) states that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may etc. And subsection (3) states that‑ `the answers given by the accused may be taken into consideration in such inquiry or trial. Further, section 287 requires that‑ `the examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence. (This refers to the sess ions trial). It is important there fore that an accused should be properly examined under section 342 and as their Lordships of the Privy Counsel indicated in Dwarkanath v. Emperor (A I R (20) 1933 P C 124 at p. 130.) if a point in evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in Sessions Court. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of section 342 should be fairly and faithfully observed". So far as the committal proceedings in the case are concerned, the examination was on the whole fair and full for the purpose of a committal Court. The examination in the Sessions Court was as under :‑ "Q.‑Did you make the statement on 9th November 1949, as read out to you, and is it correct ? A.‑Yes. Q.‑Have you anything else to say ? A.‑‑No I am innocent and the statements of the witnesses in the Court of the committing Magistrate were recorded without any notice to me. I could not, therefore, engage any counsel. Q.‑Do you wish to produce any defence ? A.‑No." Their Lordships observed:- "The evidence recorded in the committal Magistrate's Court is not as full and as complete as the evidence recorded in the trial before the Sessions judge. Accord ingly, it often happens that evidence is given in the Sessions Court and facts are disclosed which do not appear on the record of the committing Magistrate. If the judge intends to use these against the accused, it is clearly not enough to question him about matters which occurred in the committal Court, for material of this kind will not be found on the sessions record in these circumstances. That has happened here". In the Sessions Court 3 witnesses were examined, who were not examined, in the committing Magistrate's Court Evidence of extra judicial confession, dying declaration and circumstantial evidence was also led in the Sessions Court the Sessions Judge and the High Court based them decisions on these materials, which the appellant was nor asked to explain. Their Lordships therefore observed at page 445 :‑‑ "In any event the Code directs that the accused shall be afforded these opportunities and an omission to do so vitiates the trial if prejudice occurs or is likely to occur". Again, at page 446, they observed :‑ "I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of 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 has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of section 342 Cr. P. C. is so gross in this case that I feel there is grave likelihood of prejudice". In Bijoy Chand Patra v. State of West Bengal (AIR (39)1952SC105.) it was observed :‑ "It is not sufficient for the‑accused merely to show that he has not been fully examined as required by section 342, Cr. P. C., but he must also show that such examination has materially prejudiced him". In Kandan Narayanan and others v. State (A I R 1952 Travancore ‑Cochin 459) it was held :‑ "Where the defence of the accused persons is a total denial of their presence on the occasion and denial that they committed any of the acts mentioned by the pro secution it cannot, from the fact that elaborate questions were not put to the accused drawing the attention of each one of them to all that was disclosed in the evidence of the prosecution, be said that there is a material disregard of the provisions of section 342 Cr. P. C. and it can certainly not be said that there was gross disregard which was likely to occasion prejudice". In the present case also the defence of the accused was denial. No prejudice has therefore occurred to him by his defective examination in the Sessions Court. The learned judges distinguished Tara Singh's case by holding :‑ "The learned judges go on to state this was not the only error in the case in question and the other mistakes are narrated subsequently". Dwarakanath's case was distinguished, as there the defect consisted in an omission to put an important question relating to the medical certificate that was granted by witness who was charged with perjury. Without giving the accused an opportunity of explaining certain scientific facts observed in the body of the victim, the Court told the jury that the `absence of blood in the body cavity was a vital point'. Their Lordships say that if this was the position it was incumbent upon the Court to call the accused's attention to this point and ask for explanation under section 342 of the Code of Criminal Procedure. There again it was not laid down that any defect in observing the provisions of section 342 would vitiate the trial. In re Mathali Goundar (A I R 1952 Mad. 812.), it was held that‑ "Where all the circumstances have been put in the committing Magistrate's Court and no circumstances on which the Sessions judge relies appear in the evidence in the Sessions Court, which have not already appeared in the committing Court and which have not been put to the accused, it cannot be said that section 342 Cr. P. C. has been complied with because the Sessions judge himself has not put separate simple questions to the accused which he should do in order to observe the demeanour of the accused explaining the incriminating circumstances alleged against him". They held "However desirable it may be and however much we may say that the Sessions Judge should follow such a procedure, we do not think that in this case, the failure to do so either vitiates the trial or has resulted in any prejudice to the accused. "Tara Singh's case was distinguished in this case. The facts of the present case are the same as the examination of the accused in the committing Magis trate's Court was thorough and no other evidence was led in the Sessions Court. In Ajmer Sing v. The State of Punjab (A I R 1953 S C 77.), their Lordships observed that the conviction should not be set aside in the absence of prejudice. Coming to decisions in Pakistan, it was held by their Lordships of the Federal Court in Rahim Bakhsh v. Crown (PLD1952FC1) that there is ample authority for the proposition that where the confession of the accused has been made on integral and substantial part of the prosecution case, the failure of the judge to question the accused about it, is clearly a serious omission which cannot be cured by the provisions of section 537 Cr. P. C. The failure of a trial Court to question the accused about his confession would amount to an infringement of the provisions of section 342 Cr. P. C., and the confession will be excluded from consideration in determining the guilt of the accused. Where such a confession or admission is the sole basis of the judgment convicting the appellant, the failure to question him about it must be held to have prejudiced his case substantially. This case was also referred to in Aminul Haque v. The Crown (PLD1952FC63.), where it was held that accussed's attention must be called to vital points in the evidence and explanation sought. The Lahore High Court followed Rahim Bakhsh's case in Shammun v. The Crown (P L Q 1952 Lah. 374), which was also a case of confession only, observing: "But when the irregularity is so grave and palpable that it amounts to a complete disregard or violation of the provisions of section 342 Cr. P. C. the appellate Court may presume a failure of justice on the broad principle that a necessary condition of fair trial was not observed by the trial Court". The Lahore High Court following A I R 1952 Mad. 812, held in Ali Shah and others v. The Crown (P L D 1953 Lah. 14) Session Judge failing to put such questions to accused as might have enable him to explain any circumstances appearing in the evidence against him but asking him merely whether he had made the statement (which was read out to him) before the committing Magistrate and whether he wanted to add anything to it, would not vitiate the trial unless failure results in prejudice to the accused or failure of justice". At page 21 they observed :‑ "The Sessions Judges should realise that the evidence referred to in section 342 Cr. P. C. is the evidence recorded by them, and not the statements recorded by the committal Court which do not constitute evidence at the trial unless transferred to the record of the Sessions Court under section 288 Cr. P. C. Wherever, however, a Sessions judge has failed to perform this duty and the question is whether the irregularity committed by him has caused any prejudice to the accused or not, it should be seen whether all the circumstances appearing in evidence against the accused in the committal Court have been put and the accused have been given the opportunity to explain them, then it should be seen whether any new circumstances have appeared in evidence in the Court of Session which the accused had not the opportunity to explain. If it is found that all the material circumstances have been put to the accused in the committing Court and no new circumstances have appeared in evidence against them in the Court of Session, then the failure of the Sessions judge to repeat the questions put in the com mitting Court and to obtain the answers already given may not be treated as an irregularity which should vitiate the trial. If the circumstances appearing in evidence against the accused were not put to them either by the committing Court or by the Court of Session, then it may well be presumed that the accused were prejudiced in their trial and a retrial should be ordered from the stage where the irregularity occured'". In the present case the accused is admitted to have been properly examined by the committing Magistrate, and it is not shown whether any new circumstances was disclosed in the Sessions Court which required explanation. It has consistently been held by this Court, and Sind J. C's Court following Dwarkanath's case, that questions to explain vital points are very necessary, and omission to question the accused on crucial points is a miscarriage of justice. Even if failure to observe the provisions of section 342 Cr. P. C. is an illegality, it has to be seen whether the accused has been prejudiced or there has been a miscarriage of justice. Reference may be made to Khairo v. Crown (31 S L R 470), Piniladhoshah v. Crown (1942 Sind 33), Rabban v. Emperor (32 S L R 109), Faqir Muhammad v. Emperor (1947 Sind 177.), Bhagwandas v. Crown (1942 Kar. 142). The same view was taken by myself and my Lord, the Chief Judge in Criminal Appeal No. 19 of 1952, Haji v. Crown. After Subrahmanya Ayyers' case (25 Mad. 61 (P C).) the idea prevailed that section 537 Cr. P. C. did not apply to the mandatory provisions of the Code, although there was nothing in the section itself to give such a restricted scope. But the ruling in Abdul Rahman's case (31 C W N 277 (281 P C).) has dispelled that idea and section 537 Cr. P. C. may now be taken to cover any irregularity in a wider sense of that term, provided there has been no failure of justice. In the face of the pronouncement in Abdul Rahman's case, it is no longer upon to (sic) Courts to hold that the mere fact that an imperative statutory rule of procedure has been broken is enough to vitiate the trial or proceedings. The Court should consider the gravity of the irregularity or omission and whether it might have worked actual injustice to the accused. A breach of a provision even though mandatory, cannot be said an illegality necessarily vitiating the proceedings. Even if there is an illegality, the Court will not interfere, except in case of failure of Justice. Section 531 Cr. P. C. applies even to a case of what is called illegality, i.e. where express and imperative provisions of law are ignored, and no finding, sentence or order passed by a Court of competent jurisdiction can be reversed or altered in appeal or revision on account of any illegality, unless it his actually occasioned a failure of Justice. The point was further explained by the Privy Council in a recent case, where his Lordship Sir John Beaumont, observed : "Even on this basis, Mr. Prith for the accused has argued that a breach of a direct and important provision of the Code of Criminal Procedure cannot be cured, but must lead to the quashing of the conviction. The Crown, on the other hand, contends that the failure to produce the note book in question amounted merely to an irregularity in the proceedings which can be cured under the provisions of section 537 of the Code of Criminal Procedure if the Court is satisfied that such irregularity has not in fact occasioned by failure of justice. There are, no doubt, authorities in India which lend some support to Mr. Prith's contention, and reference may be made to Tirkha and another v. Nanak and another (49 All. 475) in which the Court expressed the view that section 537 of the Code of Criminal Procedure applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mandatory provisions of the Code, and to In re Madura Muthu Nannian (45 Mad. 820.), in which the view was expressed that any failure to examine the accused under section 342 of the Code of Criminal Procedure was fatal to the validity of the trial and could not be cured under section

537. In their Lordships opinion this argument is based on too narrow a view of the operation of section

537. When a trial is conducted in a manner different from that prescribed by the Code as in N. A. Subramania lyer's case (28 I A 257=5 C W N 885.), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the mariner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none‑the‑less so because the irregularity involves, as must nearly always be the case, a breach of one' or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordship's Board in Abdul Rahman v. The King‑Emperor (5 Rang. 53), where failure to comply with section 360 of the Code of Criminal Procedure has been held to be cured by sections 535 and 537 Pulukuri Kottaya v. The King Emperor (A I R 1947 P C 67 (1947),) vide Mitra's Criminal Procedure Code Commentary, pages 1646‑47, Vol. II, 11th Edition. There is therefore no substance in the contention raised by the learned advocate. The above is the whole of the prosecution case, and it was placed before the jury by the learned Judge, and a unanimous verdict of guilty was obtained. I see no reason to disagree, and in fact I agree, with the appreciation of the evidence. The learned advocate for the accused has not pointed out any misdirection which prevented the Jury from arriving at a proper conclusion. The learned advocate for the accused has next argued the question of sentence in the case. The accused is aged 20 years. The blow with the knife was given with a great force, with the result that intestines protruded out. There are no extenuating circumstances in the case. I would therefore maintain the conviction of the accused Muhammad Shafi son of Abdul Aziz under section 302 P. P. C., and confirm the sentence of death. (Referring Judgment) MUHAMMAD BAKHSH, J.‑(11th November, 1953).‑This case comes up before me on a difference of opinion between my learned brothers Vellani and Muhammad Bachal, JJ. who constituted a Division Bench in confirmation case No. 29 of 1953, Crown v. Muhammad Shafi, son of Abdul Aziz The difference arose not on the facts of the case but on the question whether the provisions of section 342 Cr. P. C. had been complied with by the trial Court. Muhammad Bachal, J. was of the view that the provisions of section 342 had been fully complied with and in any case no such prejudice. had been caused to the accused which could not be cured under section

537. He therefore held that the trial was not vitiated and he accordingly confirmed the sentence of death imposed upon the accused. Vellani, J. held that the provisions of section 342 had not been complied with and a failure of justice within the meaning of section 537 had occurred in the case. He held that the trial of the case from the stage of accused 's statement under section 342 was not consistent with the provisions of the Cr. P. C. regulating sessions trials. He accordingly directed that the case be remanded to the trial judge for examining the accused in accordance with section

342. Accused Muhammad Shafi had been tried on the charge of murder under section 302 P. P. C. by a learned judge of this Court, Rahim Bakhsh, J. sitting with the jury. A unanimous verdict of guilty was returned by the Jury under section 302 P. P. C. and the learned judge convicted the accused on that verdict and sentenced him to death. The facts of the case briefly stated were as following. Accused Muhammad Shafi and deceased Abdul Sattar were both friends. They were rickshaw‑drivers. They were both 20 to 25 years old. They lived in the same but and slept on the same cot. One Fida Muhammad also lived with them in the, same hut. He is the manager of the Star Rickshaw Factory. This factory is separated from the but by a wall. Ghulam Nabi and Aslam worked in this factory. It is alleged that the accused used to give all his earnings to the deceased and used to ask him not to associate with other people. On 8th January, 1952 at about 9‑30 a.m. the deceased was attending to his rickshaw in a corner of the factory. The accused was sitting at the threshold of the interconnecting door with a blanket wrapped round him. Aslam was repairing the rickshaw while Ghulam Nabi was sweeping the ground in the factory. Fida Muhammad was supervising the work in the factory. Suddenly the attention of Fida Muhammad, Aslam and Ghulam Nabi was drawn towards the deceased who raised cries "I am dying." They saw the accused standing with a blood‑stained knife in his hand. His eyes were red. The deceased fell on the ground. He had a big wound in his abdomen from which the intestines had protruded, Fida Muhammad ran up to the policemen Nawaz Khan and Sadiq who were on traffic duty about 25 paces away. Both the policemen went to the scene of offence. They also saw the accused standing there with the blood‑stained knife in his hand. Nawaz Khan snatched his knife and arrested him. Mashirnama was prepared. S. I. P. Riasat Ali was also on duty that day about 25 paces away from the scene owing to a strike in Burmah Shell. He came to know of this murder and hurried to the scene of offence. Nawaz Khan produced the accused and the blood‑stained knife before him along with the Mashirnama. Fida Muhammad was deputed to go to the police station and lodged the first report. S. I. P. Riasat Ali searched the person of the accused and found from his shirt pocket a small photo of the deceased. This was secured and a Mashirnama was prepared. After requisite investigation was over the accused was sent up to stand his trial. It will be seen from the above resume of facts that the evidence offered by the prosecution to connect the accused with guilt consisted of three kinds only viz. (1) Ocular testimony of Fida Muhammad, Aslam, Ghulam Nabi, Nawaz Khan and Sadiq. (2) The securing of the blood‑stained knife from the hands of the accused almost immediately after the occurrence. (3) The arrest of the accused on the spot in the circum stances of this case. In light of these facts it will be necessary now to read very carefully the statement of the accused recorded in the Court of the Committing Magistrate. It runs as follows :‑ "Q.‑Did you on 8th January, 1952 stab Abdul Sattar to death in Star Rickshaw Factory near City Railway Station behind Cotton Exchange Building ? A.‑No. Q.‑Did Nawaz Khan, police constable snatch blood stained knife Article A from your hand soon after you committed murder of Abdul Sattar at the place of offence ? A.‑I do not know. Q.‑Were you arrested by the police at the place of offence soon after Abdul Sattar was murdered by you ? A.‑I do not know. Q.‑Was your personal search taken by the police ? A.‑Yes. Q.‑Was the photograph of deceased Abdul Sattar Exh. 11 recovered from your shirt pocket by the police on your personal search ? A.‑Yes. Q.‑Why do the prosecution witnesses state against you ? A.‑I do not know. Q.‑You have heard the prosecution evidence. Have you anything else to state ? A.‑I have nothing to say. Q.‑Did you and deceased Abdul Sattar use to live in Star Rickshaw Factory ? A.‑‑Yes. Q.‑Did you use to pay all your earnings to Abdul Sattar deceased ? A.‑I do not know. Q.‑Did you ask deceased Abdul Sattar not to associate with others ? A.‑I do not know. I will make my statement before Sessions Court." It will be seen from above that the statement fully com plied with the provisions of law laid down under section 342 Cr. P. C. and was thorough in every respect. Questions were asked from the accused not only on all the points which connected him directly with the crime and on which his conviction has been based, but also regarding various other circumstances which had even a remote bearing on that question. The possession of a photo of the deceased, for instance, was not a piece of evidence connecting the accused directly with the crime and yet that question was asked from him. The accused was also asked if he used to pay his earnings to the deceased, or if ever he asked the deceased not to associate with other people as was alleged by the prosecution. In fact nothing remained to be desired so far this statement was concerned. Even the advocate for the accused has admitted before me that the statement of the accused recorded by the Committing Magistrate was full and thorough. An objection was taken only against the statement of the accused recorded in the Sessions Court. Before I reproduce the Same it is necessary for me to state that no new evidence was recorded in the Sessions Court which was not recorded in the committal Court. The evidence in the committal Court covered all the points alleged against the accused and no evidence of any other kind or on any other point was adduced in the Court of Sessions. The state ment of the accused in the Court of Sessions reads as follows :‑ "Q.‑Your statement recorded in the lower Court has now been read out to you, was it correctly re corded ? A.‑Yes. Q.‑You have heard the prosecution evidence led against you in this Court, what have you to say ? A.‑I do not know anything about this incident. I know nothing. Q.‑Do you want to add to what you have stated in the L. C. ? A.‑No Sir." The learned advocate for the accused contended before the Division Bench that the trial was vitiated by the failure of the Sessions Court to comply with the provisions of section 342 and he relied upon the ruling of the Supreme Court of India in Tara Sing's case reported in (A I R 1951 S C 441.) My learned brother Muhammad Bachal, J. after dis cussing that case and referring extensively to many other rulings of this Court as well as other Courts came to the conclusion that there was no substance in the contention raised by the defence. My learned brother Vellani J. however was of a different opinion. He reached the conclusion that the provisions of section 342 had not been complied with and consequently a failure of justice within the meaning of section 537 had taken place. He therefore directed a retrial of the case from the stage of the statement under section

342. The basis for his conclusion will be found in the following observation:- "The purpose of taking the statement of the accused in the Court of the Committing Magistrate under section 209 Cr. P. C. is to enable the accused to explain the circum stances appearing in the evidence against him so that the committing Magistrate may decide whether to discharge the accused to try the accused himself or to commit him to a Court of Sessions. The examination is confined to those circumstances which appear in the evidence against the accused on the record of the Committing Magistrate. "After committal and during the Sessions trial, the state ment of the accused under section 209 Cr. P. C. is required under section 287 Cr. P. C. to be tendered by the Prosecutor and read as evidence." When tendered and read, it becomes a part of the prosecution evidence to which in principle, the provisions of section 342 apply. As section 289 Cr. P. C. indicates, the examination of the accused under section 342 Cr. P. C. and the examination of the witnesses for the defence take place after the statement taken under section 209 Cr. P. C. has become a part of the prosecution evidence. "Under the, Code of Criminal Procedure, the accused is not a competent witness in his own behalf and cannot be heard. His only opportunity to explain the circumstances appearing in the prosecution evidence against him is that afforded under section 342 Cr. P. C. which enjoins that the Court shall question the accused for that purpose generally on the case after the witnesses for the prosecution have been examined, and therefore he is called on for his defence, and subsection (3) of that section states that "the answers given by the accused may be taken into consideration" at the trial. It must be noticed that the statement under section 342 is not evidence, and is to be distinguished from a statement recorded by the Committing Magistrate under section 209 Cr. P. C. which under section 287 Cr. P. C., has become prosecution evidence and has changed its character. The two statements are taken at materially different times and for different purposes, and at the trial are given different characteristics and have different uses. It is inadmissible therefore in cases involving questions relating to breach of section 342 or consequent failure of justice to refer to the statement of the accused under section 209 Cr. P. C. as if it were the anterior part of his statement under section 342 Cr. P. C. I do not see that the cases in A I R (1951) Supreme Court 441 and A I R (1953) Supreme Court 76 or the previous decisions of the Chief Court of Sind have in effect considered this reasoning. "The evidence which section 342 Cr. P. C. requires the Court to put to the accused to enable him to explain it, is that which is recorded in the committal proceedings finds no place therein unless admitted on the record of the trial Court under section 288 Cr. P. C. or other provisions of law, in which case it becomes a part of the evidence in the trial Court." With all respect to Vellani, J. I do not find myself in agreement with this proposition to law. The statement of an accused person in the committal proceedings is recorded under section 342 and not under section

209. Section 209 only indicates the stage at which the statement of accused under section 342 has to be recorded. Section 209 reminds the Magistrate that a stage in the inquiry has been reached when the statement of the accused must be taken with a view to enable him to explain the circumstances, if any, appearing in the evidence against him. Section 342 is the only section in the whole Code of Criminal Procedure under which an accused person is to be examined whether it be in the course of an enquiry before a Committing Magistrate or a regular trial before the Magistrate or in the Court of Sessions. This is perfectly clear from the scheme of the Act. Section 209 appears in Chapter XVIII which deals with " Inquiry into cases triable by the Court of Sessions or High Court." Section 342 appears in Chapter XXIV which deals with " General Provisions as to Inquiries and Trials". Section 342 therefore applies to the proceedings before the committing Magistrate as much as it applies to the Sessions trial. Section 342 itself reads :‑ "342. (1) For the purpose of enabling 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." Section 209 is the section under which an accused person is discharged in the committal proceedings. It is similar to section 253 under which an accused person is discharged in a trial for a warrant case. It will be advantageous to reproduce both these sections as they appear in the Code. "

209. When accused person to be discharged.‑(1) When the evidence referred to in section

208. Subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the, accused at any previous stage of the case, if, for reasons to be recorded by such, Magistrate, he considers the charge to be groundless, "

253. Discharge of accused.‑(1) If, upon taking all the evidence referred to in section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, any reasons to be recorded by such Magistrate, he considers the charge to be groundless." It will be seen from above that these two sections are drafted almost in the same language and are intended to empower the Magistrate to discharge the accused if there is no evidence against him. Section 342 on the other hand is one of the general provisions of the Code which govern all inquiries and trials. The marginal note to section 342 is "Power to examine the accused" This governs the trial of a summons case also as would be clear from a reading of section 245 Cr. P. C. This being the legal position it may not be correct to describe the statement of accused recorded by the committing Magistrate as "the anterior part of his statement under section 342 Cr. P. C." It is a full fledged statement recorded by the committing Magistrate under section 342 (and no other section) at the stage indicated in section

209. The language of section 209 itself makes this point perfectly clear. Sub section (1) of section 209 must be reproduced again for this purpose. It reads as follows :‑ "

209. When accused person to be discharged.‑(1) When the evidence referred to in section 208, subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed according." If section 209 had been intended to confer the power on the Magistrate to examine the accused in the course of inquiry the language must have been different. The words " has examined " would not in any case have found their place there. The section would then have been drafted in something like the following form " (1) When the evidence referred to in section 208, subsections (1) and (3) has been taken, the Magistrate shall, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, put such questions as he considers necessary etc." After this there should have been inserted another section relating to the power to discharge the accused or subsection (2) would have been tacked on to subsection (1) for this purpose. The words in section 209 "has examined" clearly refer to the exercise of power under section

342. If this were not so, I would say that in the Sessions Court the accused is examined, not under section 342 but under section 289 which reads as under :‑ " 289. (1) 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 means to adduce evidence." In view of these reasons it becomes clear that the state ments of accused recorded under section 342 by the Com mitting Magistrate and the Sessions judge have absolutely the same purpose behind them, viz., to know what the accused has to say in regard to the allegations made against him. Naturally the two statements are taken "at materially different times" but they are not taken "for different purposes" : nor can I agree that "at the trial the two statements are given different characteristics and have different uses." Both of them constitute the voice of the accused in answer to the allegations, against him and both of them are put to the same use, viz., the consideration of prosecution evidence in light of the accused's explanation. I therefore see nothing that is not considered by the two rulings of the Supreme Court of India or the previous decisions of the Chief Court of Sind. This brings me immediately to section 287, its object and its effect. Section 287 reads as follows:- "

287. Examination of accused before Magistrate to be evidence.‑The examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence." The only object of this section is to bring the statement of the accused taken by the committing Magistrate legally on the record of the Sessions Court in the same way as the statement of a witness is transferred to the Sessions Case under section

288. The object of such a provision is clear. It means that the trial Court should be able to look into and know what the accused had stated in the Committing Magis trate's Court. The effect is that the statement of the accused taken by the committing Magistrate forms part of the record before the Sessions Court which it has got to consider along with other evidence in order to decide the question of guilt or otherwise of the accused. The Sessions Court cannot therefore ignore or throw away the statement of, the accused recorded by the committing Magistrate as if it were a document of no consequence. The result is plain. If the trial Court has to consider the statement of the accused in the committing Court as it is bound to do by virtue of section 287, and if the trial Court gives a further opportunity to the accused to add to what he has said before, in my opinion the provisions of section 342 are fully complied with. This is exactly what has happened in this case. It has been said that "the statement under section 342 is not evidence and is to be distinguished from the statement recorded by the committing Magistrate under section 209 which under section 287 has become prosecution evidence and has changed its character." This has reference to the language of section 287 which says that the statement of accused in the committing Court shall be tendered by the prosecutor and read as "evidence". It means nothing more nor less than this, that the statement of the accused in the committing Court should be transferred to the record of the trial Court and that the trial Court should draw the notice of the accused to it and ask him what he has to say about it. This does not mean that it looses its original character of being the state ment of accused recorded by the committing Magistrate under section

342. For further clarification it may perhaps be necessary to understand the full implication of the word "evidence" occur ring in section

287. The word "evidence" has not been defined in Cr. P. C. or the Penal Code. It has been defined in Evidence Act in a restricted sense, but that definition would not apply to words used in the Cr. P. C. Apparently the word "evidence" in section 287 has been used in the broad sense of that term, viz., that after the statement of lower Court is tendered by the prosecutor it becomes a part of the record of the trial Court. It is used in the same sense in which it is used in the next following section

288. At pages 24 to 27 of Sarkar on Evidence (7th Ed.) we have some important observations in this connection. It will be useful to reproduce some of them here :‑ "Bentham defines evidence as "any matter of fact the effect, tendency or design of which is to produce in the mind a pursuasion concerning the existence of some other matter of fact; a pursuasion either affirmative or dis-affirma tive of its existence .........................................................

The word evidence signifies in its original sense, the state of being evident, i.e., plain, apparent or notorious ...................Taylor uses the word evidence to mean `all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation

Taylor defines evidence as `any matter of fact which is furnished to a legal tribunal otherwise than by reasoning or a reference to what is noticed without proof as the basis of an inference to some other matter of fact .............................................Phipson says : Evidence as the term used in judicial proceedings, means the facts, testimony and documents which may be legally received in order to prove or disprove the fact under inquiry

Judicial evidence may be defined as evidence received by Courts of justice in proof or disproof of facts, the existence of which comes in question before them Judicial evidence is a species of the genus "evidence" and is for the mist part nothing more than natural evidence restrained or modified by rules of positive law ................................... The meaning of the word "evidence" as given in the Evidence Act is not complete. There are other matters which are also treated as evidence thus the result of a local inquiry by a presiding officer does not come under the definition of the word `evidence', but the definition of evidence has to be read with the word "proved" which comes immediately after, when determining what is evidence within the Act

A fact is said to be proved when after considering the matters, before it, the Court believes it to exist. All relevant facts brought for purpose of proof other than oral testimony and documentary evidence, i.e., the matters before the Court also come within the term evidence as used in the Act." Thus it becomes crystal clear that when the statement of the accused recorded by the committing Magistrate is tendered by the prosecution at the Sessions trial and is read as evidence, it becomes "a matter before the Court" within the definition of the word "proved" under section 3 of the Evidence Act and the Court has to take full notice of it. In view of all these reasons I have no doubt in my mind that the learned trial judge in this case fully complied with the provisions of section 342 when he read out the statement of the accused recorded by the committing Magistrate to him and asked him whether it was correctly recorded. After the accused admitted its correctness the learned judge asked him if he wanted to add to it. The accused replied in the negative. The learned judge also asked him whether he wanted to say anything regarding the prosecution evidence taken in the Sessions Court. The accused denied all knowledge of the incident. In my opinion nothing more was to be done by the learned judge in compliance with the provisions of section

342. This was a very simple and straightforward case. The accused had committed the murder in broad day light at 9‑30 a.m. He was caught red‑handed on the spot with the blood stained knife in his hand. The committing Magistrate examined the accused thoroughly and gave him the fullest opportunity to explain everything. The learned Judge at the Sessions trial also gave him fullest opportunity. There was no bar to the accused from saying whatever he liked. Apparently he had nothing to say as the case was black I cannot agree that the learned judge at the Sessions trial after reading every question and answer recorded by the lower Court should have put same questions over again to the accused. No new circumstances were brought out in the Sessions trial which required explanation. I entirely agree with the reasoning of their Lordships of the Lahore High Court in the case of Ali Shan and others v. Crown reported in (PL D 1953 Lah. 14 at p. 21.). My learned brother Muhammad Bachal J. has quoted this in his judgment and I would like to repeat it here. "The Sessions judge should realise that the evidence referred to in section 342, Cr. P C is the evidence recorded by them and not the statements recorded by the Committal Court which do not constitute evidence at the trial unless transferred to the record of the Sessions Court under section 288, Cr. P C. Wherever, however, a Sessions Judge has failed to perform this duty and the question is whether the irregularity committed by him as caused any prejudice to the accused or not it should be seen whether all the circumstances appearing in evidence against the accused in the Committal Court have been put to them by the Committing Magistrate or not. If they have been put and the accused have been given the opportunity to explain them, then it should be seen whether any new circumstances have appeared in evidence in the Court of Session which the accused had not the opportunity to explain. If it is found that all the material circumstances have been put to the accused in the committing Court and no new circumstances have appeared in evidence against them in the Court of Session, then the failure of the Sessions judge to repeat the questions put in the Committing Court and to obtain the answers already given may not be treated as an irregu larity which should vitiate the trial. If the circumstances appearing in evidence against the accused were not put to them either by the Committing Court or by the Court of Session, then it may well be presumed that the accused were prejudiced in their trial and a retrial should be ordered from the stage where the irregularity occurred." The real question in cases of this kind is whether any prejudice has been caused to the accused or a failure of justice has occurred. This is the gist of the ruling of all the High Courts. In this case, I find, not only that there has been no prejudice whatever but that the provisions of section 342 have been substantially complied with. I would have therefore upheld the conviction of the accused under section 302 P P C and confirmed the sentence of death passed on him, were it not for the fact that I find myself in the same difficulty in which their Lordships of the Bombay High Court found themselves in the case of Raja Ahilaji reported in (9 Bom. L R 730.) Heaton J. delivering the judgment of the Division Bench observed as follows: "The only point argued before us is one of law. In the trial before the Sessions judge, the three appellants were not questioned by the judge. It is therefore argued on their behalf that in accordance with the decision in the case of Emperor v. Savalya Atma Pastya the conviction must be reversed and a retrial ordered, on the ground that the trial was illegal. This proposition proceeds on the assumption that the provisions of section 342, Cr. P. C., apply to the case of an accused tried before the Sessions judge, even when he has been questioned on the case generally by the Committing Magistrate. That is a proposition which seems to us to be open to serious doubt, but it has been asserted in the Ruling referred to, and before that it had been asserted on several occasions by Benches of this Court. We must, therefore, reverse the conviction and order a retrial unless we are prepared to refer the point to a Full Bench. This we are not prepared to do in the particular circumstances of this case, especially having regard to the fact that the appellants were not questioned at all by the Sessions Judge and had no opportunity before him and the assessors of explaining facts which appeared in evidence against them. Conse quently we must set aside the conviction and sentence and direct a fresh trial of the three appellants. This is necessary because the particular judge who tried the case previously is not now in India." In this case before me however the accused was examined by the Sessions Judge and I am therefore inclined to refer the point to a Full Bench as also urged by the Assistant Advocate‑General Mr. Tufail Ali who has drawn my attention to some rulings by the Benches of this Court. The first case referred to is the confirmation case No. 43 of 1952, Muhammad son of Umed Alt Kalhoro v. Crown where a Bench of this Court consisting of the Chief Judge Muhammad Bachal J. held as follows on 12th December 1952: "Section 342 requires that the Court shall question the accused generally on the case for the purpose of enabling the accused to explain the circumstances appearing in the evidence against him. The Supreme Court of India in Tara Singh v. The State (A I R 1951 S. C. 441), has laid down the fact that examination in the lower Court cannot be substituted for examination in the Sessions Court. In this case the accused in the committal Court was asked regarding the turban and the hatchet and he denied that the police had secured the hatchet and the turban from him. If the accused had been questioned in the Sessions Court upon other circumstances appearing against him we should not have held that a failure in the Sessions Court to ask him a further question regarding the hatchet and turban had necessarily caused a failure of justice : on the other hand in agreement with the judgment cited above we cannot hold that examination in the lower Court on the point was a substitute for examination in the Sessions Court." In this case the conviction of the accused was set aside and a retrial was ordered from the stage of the accused's statement before the same learned Judge and the same assessors. This judgment was relied on by the advocate for the appellant in Criminal Appeal No. 19 of 1952, Haji son of Zafar v. Crown which was decided on 2nd May 1953 by the Bench of this Court presided over by the same learned judges The pertinent passage of the judgment reads. "The next argument raised by Mr. Qureshi was the prejudice had been caused to the appellant by failure to observe the provisions of section 342, Cr. P C. The questions recorded by the Committal Magistrate and by the Sessions judge covered the whole of the circumstance appearing against the appellant except that other question regarding the other main prosecution witnesses, such as Ali Bakhsh Pit Bakhsh and Kandero should have been put to the appellant, but it seems that the appellant himself knew that it was in his interest to ascribe enmity to the prosecution witnesses and limited his mode of explanation to Shahzadi, leaving it to be inferred that either Shahzadi had won over the prosecution witnesses or that she alone was responsible for the identifi cation of the appellant. It was argued by Mr. Qureshi that this Court in Muhammad son of Umer Ali Kalhoro v Crown (confirmation case No. 43 of 1952 Criminal Appeal No. 253 of 1952) laid it down that examination under section 342 by the committal Magistrate is no substitute for examina tion by the Sessions judge, and that this dictum is to be construed as merely that in the Sessions Case the examina tion by the committal Court is of itself nothing and therefore it must be held that no examination has been held. This Court however pointed out that it would not have regarded the accused as necessarily prejudiced by failure in the Sessions Court to ask further questions on circumstances as to which he had been examined in the committal Court, and the further words were added to indicate to Sessions Judges that they must not rest content with the examination in the committal Court ; the judgment then proceeded to set out circumstances upon which neither the committal Court nor the Sessions Court had given the accused an opportunity of explanation. In the present case we think that no prejudice was caused to the appellant." The conviction of the appellant in this case was maintained though the section of law was modified. It will be apparent from these two judgments that the real question involved in these cases was whether there had been any prejudice. The third judgment by another Bench of this Court came on 20th July 1953. Confirmation case No. 22 of four Criminal Appeal No. 127 of 1953, Bhai Khan and others v. The Crown, was heard by a Bench of this Court comprising the then Chief Judge, Agha J and Vellani J. The judgment of the Bench was delivered by Vellani J who held as follows: "When the, learned Sessions Judge came to examine appellant Bhi Khan under section 342 Cr. P. C, he asked him whether his statement to the committing Magistrate was correctly recorded to which the appellant Bhai Khan answered in the affirmative. He then said to him "You have heard the evidence of the prosecution witnesses, what have you to say"? and the appellant Bhai Khan answered "Nothing." It is difficult to find that there has taken place the examination of the accused person which section 342 contemplates for not a single circumstance appearing in the evidence against him has been ‑put to him and he has had no opportunity whatsoever of explaining anything." The case was remanded to the Sessions Court for taking further evidence on the case of death and for taking the statement of appellant Bhai Khan under section

342. This decision differs from decisions of the other Benches of this Court in the two cases cited above. In my opinion it is necessary in the interests of proper administration of justice that there should be a uniformity of decision on a particular point of law, so that the subordinate Courts should have a proper guidance on the subject I am, therefore, of the view that this matter should be decided once for all by a Full Bench of this Court. The point for reference to the Full Bench will be, "whether the provisions of law under section 342, Cr. P. C. have been complied with in confirmation case No. 29 of 1953, Crown v. Muhammad Shafi son of Aziz. If not, whether the trial is vitiated." The papers may be submitted to the Chief Judge under section 12 of the Sind Courts Act, 1926. The result of this case shall depend on the decision of the Full Bench. (Full Bench Judgments). CONSTANTINE, C. J.‑Muhammad Shafi having been convicted under section 302 P. P. C. by our learned. brother, Munshi (Rahim Bakhsh ?), J. sitting with the jury, and having been sentenced to death, the case come before a Bench of this Court by way of appeal and confirmation. The Learned Judges having disagreed, the case was laid, under section 378 Cr. P. C., before Muhammad Bakhsh, J. The learned judge referred the question, whether the provisions of law under section 342 Cr. P. C. have been complied with, and, if not, whether the trial is vitiated, to a Full Bench. Arguments were heard upon these questions by the Full Bench, but after the hearing a doubt, founded on Ishan v. Hridoy (A I R (1925) Cal. 1040) and Re. Dudekula (40 Mad. 976), was raised by Muhammad Bakhsh J. as to the jurisdiction of the Full Bench. We, therefore, heard arguments upon this point from the learned Advocate General, the Public Prosecutor of Karachi on behalf of the Crown, and from Mr. Sharif Ahmad for the defence in Muhammad Shafi's case. Since a similar question was likely to arise in Confirmation Case No. 7 24 of 1953, Mr. Tufail Ali for the Crown, and Mr. Arfin for the Defence, were also present to argue the question. The following provisions of law are material :‑. Section 377, Cr. P. C. "In every case so submitted the confirmation 'of 'hr sentence or any, new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." Section 378, Cr. P. C. "When any such case is heard before a Bench of judges and such judges are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge, and such judge after such hearing as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion." Section 11, Sind Courts Act "(1) Except as by this Act or by any other enactment for the time being in force otherwise provided, the "Chief Court may make rules to provide in such manner as it thinks fit for the exercise by one or more of its judges of any of its powers, (2) The Chief ‑Court may make rules declaring what number of judges, not being less than three, shall constitute a full bench of the Chief Court, and may by these rules prescribe the mode of determining which judges shall sit as a full bench, when a full bench sitting becomes necessary. (3) Subject to the provisions of subsection (2), the Chief judge may determine which judge in each case shall sit alone and which judges of the Chief Court shall constitute any bench." Section 12, Sind Courts Act: "Any single judge of the Chief Court and any bench of judges thereof, not being a full bench, way in any case refer for the decision of a bench of two judges or of a full bench respectively, any question of law or custom having h the force of law, or the construction of any document, or the' admissibility of any evidence arising before the judge or bench and shall dispose of the case in accordance with the decision of the bench to which the question has been referred: Provided that nothing in this section shall apply to 'a judge of the Chief Court exercising the jurisdiction of the Chief Court as the principal criminal Court of original jurisdiction for the sessions division of Karachi." Section 429 Cr. P. C. does not differ in any respect material to this question from Section

378. It is clear from sections 11 and 12 Sind Courts Act which except as provided in the proviso to section 12, refer to both the criminal and civil jurisdiction of this Court, that the Chief judge has not the power to determine whether a Full Bench shall be constituted, unless authorised by rule, and secondly that the powers of the Chief Judge to nominate judges to a Bench is subject to any rules to the contrary. The relevant rules are Rules 8 and 12 of the Appellate side Rules of this Court, which read as follows:- "

8. The Civil and Criminal jurisdiction of the Chief Court on the Appellate side shall, except as otherwise provided by any law for the time being in force and by these rules, be exercised by a Division Court consisting of two judges." "12. (1) A full bench shall consist of any number of judges not less than three." It follows, therefore, that in this case the jurisdiction of the Full Bench rests upon section 12 of the Sind Courts Act, and tile question which arises as to our jurisdiction may thus be shortly stated as whether a judge before whom a case has been laid under section 378 is to be considered as a Single judge or ‑is a Bench of Judges for the purposes, of section 12 Sind Courts Act. The learned Public Prosecutor (Mr. Raymond) argued that when the third Judge under section 378 delivers his opinion, the case should go back to the Bench for the pronouncement of judgment or order in accordance with that opinion. This practice, however, though it obtains in Allahabad, is contrary not only to the practice of this Court, but also to the practice in Bombay, Calcutta and Lahore. It is true that section 377 requires that the sentence shall be made, passed and signed by at least two judges, where the High Court consists of two or more judges, but we consider that section 378 is a proviso to the preceding section, and that since the judgment or order shall follow the opinion delivered by the third judge, it is competent for him alone to sign the judgment or order. The object of section 377 is primarily not to obtain two signatures upon the Judgment, but to ensure that confirmation cases are heard by at least two Judges, and that no sentence or order shall be passed except with their concurrence. This was the view taken by the learned Advocate -General and the other learned Advocates. The learned Advocate‑General, with the concurrence of the other learned advocates, as a result considered that the third judge was exercising the authority of a Bench of judges and that, therefore, he should be considered for the purposes of section 12 of the Sind Courts Act not as a single judge, but as a Bench. We think that this is the right construction which should be placed upon this section. The case is not one which is dealt with in fact by a single judge, but one which is dealt with by three Judges, even though the third judge is dealing with it at a later stage than the two disagreeing judges and it is not a case which would be decided by a single judge according to the Appellate side rules. The Madras and Calcutta decisions above mentioned state as one reason that since section 429 lays down that judgment shall follow the opinion of the third judge, hence a reference to a Full Bench is excluded. With great respect we consider that neither section 378 nor section 429 prevents the obtaining of the decision of a Full Bench upon a question of law or the subsequent delivery of the opinion of the third Judge upon the whole case. In so far as the further reasoning) of these Courts proceeds, we are not in possession of the Appellate side Rules of those Courts, and we cannot say whether those rules agree or disagree in their wording with the Sind Courts Act and our Appellate side Rules. Turning now to the questions referred by Muhammad Bakhsh J. to us, I set out the examinations of the accused before the Committing Magistrate, and before the Sessions Court. In the Committal Court. Q.‑Did you on 8th January 1952, stab Abdul Sattar to death in `Star Rickshaw Factory' near City Railway Station behind Cotton Exchange Building ? A.‑No. Q.‑Did Nawaz Khan, Police constable snatch blood stained knife Article 'A' from your hand soon after you committed murder of Abdul Sattar at the place of offence ? A.‑I do not know. Q.‑Were you arrested by the Police at the place of offence soon after Abdul Sattar was murdered by you ? A.‑I do not know. Q.‑Was your personal search taken by the police ? A.‑Yes. Q.‑Was the photograph of deceased Abdul Sattar Exh.11 recovered from your shirt pocket by the police on your personal search ? A.‑Yes. Q.‑Why do the prosecution witnesses state against you ? A.‑I do not know. Q.‑You have heard the prosecution evidence. Have you anything else to state ? A.‑I have nothing to say. Q.‑Did you and deceased Abdul Sattar use to live in Star Rickshaw Factory ? A.‑Yes. Q.‑Did you use to pay all your earnings to Abdul Sattar deceased ? A.‑I do not know. Q.‑Did you ask deceased Abdul Sattar not to associate with others ? A.‑I do not know. I will make my statement before Sessions Court. In the Sessions Court Q.‑Your statement recorded in the lower Court has now been read out to you, was it correctly recorded ? A.‑Yes. Q.‑You have heard the prosecution evidence led against you in this Court, what have you to say ? A.‑I do not know anything about this incident. I know nothing Q.‑Do you want to add to what you have stated in the L. C. ? A.‑No, Sir. It is common ground that the evidence in the committal Court and in the Sessions Court was materially the same, and that the examination in the Committal Court covered all the relevant circumstances. The first question referred to us is stated briefly without particulars, and should be expanded as follows:- Where the evidence in the Committal Court and ins Sessions Court is materially the same and the accused has been examined in the Committal Court upon all relevant) circumstances appearing against him, and in the Sessions Court the accused has replied to questions that his statement in the lower Court was correct and that he did not wish to add to it and that he knew nothing about the incident, should the Sessions judge have put to the accused the circumstances appearing against him ? The first question is thus whether the Sessions Courts complied with the provisions of section 342 Cr. P. C. To that my reply is in the negative. Section 342 requires the trial Court itself to question the accused generally on the case for the purpose of enabling the accused to explain circumstances appearing against him and reliance by the trial Court upon questions asked and replies made in the committal Court falls short of compliance with the section. Courts of Law have no power of dispensation and are not competent to substitute a procedure, even one which the Court thinks equally efficacious, for the procedure laid down by the Code. Insistence upon questions by the trial Court itself is not a mere formality, since it is necessary firstly that the demeanour of the accused should be observed, and secondly that simple questions should be put to the accused. Demeanour in many cases may be relatively unimportant, but there are cases where demeanour is important. I need hardly repeat what has been said so often by the Privy Council that the opportunity which the trial Court has of observing the demeanour of parties is a great advantage in assessing their statements, an advantage which is not had by an appellate Court. That simple questions should be put to an accused person is a matter which has been stressed in judgments of the Supreme Court of India. It is not correct that‑ the statement of the accused in the Lower Court should be read out to him, and that the accused should then be asked mentally to review questions and answer there recorded and to decide upon the sufficiency of his replies. The second question is whether this departure from the provisions of the Code vitiates the trial, that is to say whether section 537 Cr. P. C. is applicable or not. In Kottaya's case (49 Bom. L. R. 501.) Sir John Beaumont overruled the defence argument that a breach of a direct and important provision of the Code cannot be cured by section

537. He adopted the distinction drawn by Lord Halsbury in Subramania Iyer s case (21 I, A. 257 = 3 Bom. L. R. 540) between a departure from the mode of trial not curable by section 537 and an irregularity curable by section

537. If the trial is conducted substantially in the manner prescribed by the Code, then an irregularity is curable, none‑the‑less so because it involves a breach of one or more of the very comprehensive provisions of the Code. His Lordship then suggested that the difference was one of degree rather than kind. I will not hazard a definition of what is meant by departure from the mode of trial. In considering the Privy Council cases where trials were held to be so vitiated, we have as examples the trial of 41 charges together instead of three, and the doubling of judge and prosecutor. This last example falls also under the principle that justice must not only be done, but seem to be done, and it is this principle which explains the condemnation of assessors making extra -judicial inquiries. Coram non ejudice explains the case of the incompetent juror, while another principle is that publicity is of the essence of a criminal trial. The doubling of judge and prosecutor and the trying of 40 instead of 3 charges together are obviously so enormous departures from the Code as to constitute departure from the manner of trial enjoined. Whether the trial of 4, instead of 40 charges would so have been held, I hesitate to say. In the other cases the principle involved was so important that its contravention at once negatived the idea of a duty conducted trial. In the present case the departure from the Code was small, and though the principle that an accused shall be given an opportunity of explanation is fundamental, the principle itself was not contravened, since he had his opportunity though not in the precise manner; enjoined by the Code. When the Sessions judges have put questions, but the questions did not satisfy the requirements of section 342, the Supreme Court of India has consistently held that section 537 must be applied, and it must be determined whether a failure of justice has, or, what is the same, is likely to have occurred. There is no case to the contrary of any Court whose decisions are binding on us. In fact, Kottaya's ca e is express authority that not every contravention of section 342 constitutes a departure from the mode of trial. In considering whether failure of justice has occurred, Zahiruddin's case, (P L D (1947) P. C. 13) shows that the Court should consider the nature of the provision contravened. A particular effect may have to be given by a Court to the contravention. Dwarkanath s case (A I R 1933 P. C. 124) though earlier, is an instance of this : for the principle deducible from both the facts and language of the judgment is not that the trial was vitiated as by a departure from the mode of trial, but that where the accused has neither explained nor been given an opportunity of explaining a circumstance appearing against him, the circum stance cannot be taken into consideration. In Zahiruddin's case it was expressly said that the trial was not vitiated, yet, because as in Dwarkanath's case the prosecution failed. It is in this sense of failure that the word vitiated has been used in Khairo v. Crown (31 S. L. R. 470,) the, leading case often followed by this Court and expressly based upon Dwarkanath's case. If however there is sufficient other evidence, then section 537 will operate to save the prosecution on the principle of section 167 Evidence Act. It is important to note that in Dwarkanath's case there were no committal proceedings ; in Khairo's case there is no mention of examination in the committal Court, and indeed Davis, J. C. expressly referred to the absence of explanation and opportunity of explanation as the reason why one could not anticipate the accused 's possible explanation. The main object of section 342 Cr. P. C. is to ensure an opportunity to the accused of explanation. If there is an explanation given in the committal Court then the question is whether there is any likelihood that the accused could have given any further explanation believable by the trial Court. It was said by the Privy Council in Thakur Shah's case, (23 Pat. 88.) in refusing a new trial after amendment of charge: "More particularly it is not necessary where it does not appear that any fresh case could be made or fresh evidence given on behalf of the person convicted. In the present case their Lordships cannot see that any further evidence would have assisted the appellant or without stultifying himself, he could have set up any further defence." Where there is a simple case and where an accused has said he does not wish to add to his statement in the committal Court, it seems that an appellate Court would be justified in considering that no further explanation could have been may given which have assisted him. The argument that a man may deliberately choose to reserve his defence in the committal Court overlooks the fact that such a man presumably will not rest content with his statement in the committal Court, if he has any valid defence to offer. The question referred and my proposed answers are therefore as follows:- Q.‑Whether the provisions of law under section 342 Cr. P. C. have been complied with ? A.‑No. Q.‑If not, whether the trial is vitiated ? A.‑There has been no departure from the mode of trill. It is the duty of the appellate Court to consider whether the contravention of section 342 Cr. P. C. has occasioned a failure of justice. The case should therefore be returned to the learned referring judge for disposal accordingly. AGHA, J.‑This case has come up for hearing before us on the following reference made by my learned brother Muhammad Bakhsh J. "Whether the provisions of law under section 342 Cr. P. C. have been complied with in Confirmation Case No. 29 of 1953, Crown v. Muhammad Shafi son of Abdul Aziz If not, whether the trial is vitiated". My answer to these points is that the provisions of section 342 Cr. P. C. have been fully complied with, and that the trial is not vitiated. The statements of the accused recorded in the committal proceedings and before the Sessions Court have already been reproduced. It is correct that the examination of the accused in the Committing Magistrate's Court only is not sufficient, and in the Court of Sessions the trial Court has itself to see that those pieces of evidence on which the con viction of the accused has to be based are brought to the notice of the accused so that he may explain that evidence against him if he wishes to do so. The decisions cited before us are mainly based on the case of Dwarkanath v. Emperor reported (A I R (1933) P C 124). That decision states the broad principle, and has no bearing to the present case in which the point is whether the examination of the accused in the Court of Sessions was proper. In Dwarkanath's case the accused were tried before a Bench of the High Court on an information exhibited by the Government Advocate by the direction and the sanction of the Local Government pursuant to section 17 of the Letters Patent constituting the High Court, and section 194, Cr. P. C. One of the cases cited before us is the case of Emperor v. Raju Ahilaji reported in (9 Bom. L R 730.) The judgment in that case says:- This proposition proceeds on the assumption that the provisions of section 342 Cr. P. C. apply to the case of an accused tried before the Sessions judge, even when he has been questioned on the case generally by the Committing Magistrate. That is a proposition which seems to us to be open to serious doubt." In that case a fresh trial was ordered "specially having regard to the fact that they were not questioned by the Sessions Judge and had no opportunity before him and the assessors of explaining facts which appeared in evidence against them. In the case of Swaran Singh v. the State reported in (A I R (1953) PEPSU 186.) the head-note about section 342 Cr. P. C. reads as follows: The object behind section 342 Cr. P. C. is that the accused should be told by the Court as to what has been alleged and stated against him in the prosecution evidence and he should be asked to explain, if he can, the circumstances appearing in that evidence. Where this re quirement is not complied with rigidly but the omission is not accompanied by any prejudice to the accused, the failure to scrupulously conform to the provisions of section 342 Cr. P C does not vitiate the trial." In that case, the statement made by the accused in the Committing Magistrate's Court was read out and explained to the accused in the Court of Sessions, and he was asked whether it was correct and his reply was in the affirmative. He was then asked whether he had anything else to say, and whether he wished to produce any evidence. The judgment say:‑ "There can be no two opinions that the examination of the accused at the trial is a fresh examination and it must be made independently of whether his examination by the committing Magistrate was regular or otherwise." It is true that, after the witnesses for the prosecution have been examined in the Sessions Court, and before the accused is called upon to enter on his defence, he must be questioned generally on the case and afforded an opportunity to explain the circumstances that have appeared against him in the evidence of the prosecution witnesses. The evidence to be explained is the evidence at the trial, and not the evidence that might have been recorded at some prior stage. It however does not appear in the judgment of the above case whether the evidence in the Committing Magistrate's Court was materially the same as was in the Court of Session; while in the present case before us, as said by my lord the Chief Judge, " it is common ground that the evidence in the Committal Court and in the Sessions Court was materially the same, and that the examination in the Com mittal Court covered all the relevant circumstances." In the case Ajmer Singh v. The State of Punjab (AIR195 S C C76.), the statement of the accused given in the Committing Magis trate's Court was read out to him after evidence had been recorded in the Court of Sessions. He was then questioned whether the statement read out to him was made by him in the Committing Magistrate's Court, and he replied in the affirma tive. The judgment on this point says :‑‑ " The Sessions Judge did not even take care to ask the accused the routine question whether the statement made by him in the Committal Court was correct." The judgment then proceeds to say:‑ " ....when the Sessions Judge is required by that section to make the examination of the accused, his duty is not discharged by merely reading over the questions and answers to the accused put in the Committing Magistrate's Court and by asking him whether he has to say anything further about them. It is not sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence what he has to say about it. The accused must be questioned separately about each material circumstance which is intended to be used against him." There is, however, no reasoning in this judgment for coming to the conclusion why the examination of the accused, as taken in that case, was not considered compliance with the requirements of section 342 Cr. P C. Coming to the case of Ali Shan and others v. Crown (P L D 1953 Lah. 14), the examination of the accused in the Sessions Court shows that the accused was merely asked whether his statement in the Court of Sessions was the same as given by him in the Committing Magistrate's Court. The statement made by him in the Committing Magistrate's Court was not even read out to him. It was then argued on the basis of the case of in Re. Mathali Gounder reported in (A I R 1953 Mad. 812.) that by questioning the accused in the Court of Sessions on important pieces of evidence, the trial Court will have the advantage of marking the demeanour of the accused at the time of making his statement. I am not aware of any of law about this ; nor have I come across any case in which the Court has made any remark about the demeanour of an accused person while giving his statement under section 342 Cr. P C It has further to be remembered that, in Pakistan the statement of the accused is not taken on oath ; nor is he allowed to be examined as a witness on his own behalf. To me it appears that it would be disastrous to consider the demeanour of the accused at the time of his making the statement under section 342 Cr. P C because in the case of a respectable person, more often than not, the greater the falsity of the charge and the volume of evidence in support of it the greater will be the shock and consequent reaction and he will be so completely upset on account of the false charge brought against him that there will be a grave danger of his demeanour being misunderstood. In the present case, the statement of the accused recorded in the Committing Magistrate's Court was a detailed one, and there the accused was definitely informed of all the material circumstances appearing against him in the evidence led in that Court. As said above, the evidence recorded in the Court of Session against him was the same as that recorded against him in the Court of the Committing Magistrate. No new fact or allegation was brought against him in the Court of Session, At the. time of recording his statement, the learned Sessions Judge read out to the accused the statement given by him in the Committing Magistrate's Court, and asked him definitely whether it had been correctly recorded. The answer was in the affirmative. He was then told that he had heard the evidence led against him in the Court of Session, and asked whether he wished to say anything about it. His reply was, I do not know anything about this incident. I know nothing." The last question put to him was, "Do you want to add to what you have stated in the lower Court ? His reply was: No " Sir" From this, it will be seen that at the time of recording his statement in the Court of Session, the learned judge, by reading over his examination recorded in the Committing Magistrate's Court, did remind him of the important pieces of evidence recorded against him, and ask him whether the statement was correctly recorded. Thereafter he was asked if he had anything further to say after hearing the evidence in the Court of Session, and then the learned Sessions judge asked him the last question referred to above. This question clearly invited the attention of the accused to all material pieces of evidence about which he had already been questioned in his state ment recorded in the Committing Magistrate's Court, and asked him definitely whether he wished to add anything to that statement. With all respect, I cannot agree to the finding that this was not a full compliance with the require ments of section 342 Cr. P. C. Section 342 Cr. P. C. does not prescribe any particular form in which the questions have to be asked from the accused. The main principle is : when the statement of the accused is being recorded at the end of the trial, he must have present to his mind all material pieces of the evidence likely to be used against him, to give him an opportunity to explain them if he wished to do so. All this was done in the present case, and I am therefore, of the opinion that the statement recorded in the Court of Sessions did fully comply with the provisions of section 342 Cr. P. C. I have seen the judgment written by my learned brother Vellani J., who has made reference of two cases decided by the Bench composed by myself and Vellani J. In the Confirmation Case No. 22 of 1953, the relevant portion of the judgment reads as under :‑ " When the learned Sessions judge came to examine appellant Bhai Khan under section 342 Cr. P. C. he asked him whether his statement to the Committing Magistrate was correctly recorded, to which the appellant Bhai Khan answered in the affirmative. He them said to him : You have heard the evidence of the prosecution witnesses what have you to say?, and the appellant Bhai Khan answered, 'Nothing'. It is difficult to find that there had taken place the examina tion of the accused person which section 342 Cr. P. C. contemplates, for not a single circumstance appearing in the evidence against him has been put to him and he had no opportunity whatsoever of explaining any. We therefore remand the case of appellant Bhai Khan to the Sessions Judge, Larkana, to enable him to take further evidence on the cause of death and to examine appellant Bhai Khan as section 342 Cr. P. C, requires." In Confirmation Case No. 4 of 1953, the relevant portion of the judgment reads as under:- " From the above two statement of the appellant it will be clear that though in his statement in the lower Court he was questioned regarding certain pieces of evidence appearing against him, yet in the trial Court no question was asked from him in connection with any piece of evi dence appearing against him in the trial. Mr. Qureshi has argued that the statement of the appellant in the Court of Sessions Judge does not at all comply with the requirements of section 342 Cr. P. C. He has further said that though the statement of the appellant in the lower Court was a bit more detailed, yet in that statement also it was not put to the appellant that the deceased is said to have made a dying declaration which has been brought on the record as a piece of evidence against him, and what he had to say about it. It has been further contended by Mr. Qureshi that even if in the lower Court the appellant had been questioned about every piece of evidence appearing against him, it (the lower Court statement) cannot be considered sufficient when the statement of the appellant in the trial Court does not show that he has been asked questions with respect to the evidence appearing against him. Mr. Raymond, who appears for the Crown conceded this position. It is therefore clear that the provisions of section 342 Cr. P. C. have not at all been complied with." From the above it will be seen that the decision in those cases has no bearing whatsoever on the questions which we have to decide in the present case. In my opinion, therefore, there is no illegality or irregularity in the trial. As the majority decision is that the provisions, of section 342 Cr. P. C. have not been fully complied with, I would agree to the finding arrived at by my lord the Chief Judge that on account of non‑compliance with the provisions of section 342 Cr. P. C. the trial in the present case is not vitiated. As regards the reference to the Full Bench, I agree with my lord the Chief Judge that the reference made by our learned brother Muhammad Baksh J. to the Full Bench is proper. VELLANI, J.‑I agree that Muhammad Bakhsh J. had the power to make the reference to the Full Bench. I think this Court is bound to follow the principle of Dwarkanath v. The Emperor (AIR(1933)PC124=37C WN 514=32 SLR716.), which has been reiterated and applied by the Federal Court in Rahimbux v. The Crown (PLD (1952) FC1), and in Aminul Haq v. Crown (PLD (1952) FC 63,). In the former Federal Court case it may be said that there were grounds of decision namely, that there had been a breach of section 342 Cr. P. C. in respect of the admission by the accused before the Revenue Assistant, and that the admission was made under inducement and therefore inadmissible. From neither of these grounds did Akram J. express any reservation and I construe his assent as referring to both the grounds on which the conclu sion rests. In Cheater v. Cater ((1918) 1 K B 247) Pickford, L. J. said :‑ "

if a judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum

". In London Jewellers Ltd. v. Attenborough ((1934) 2 K B 206, 222.), Greer, L. J. referring to a decision of the Court of Appeal said "In that case two reasons were given by all the members of the Court of Appeal for their decision, and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first: we must take both as forming the ground of the judgment". In re: Hallet's Estate Knatchbull v. Hallet ((1880) 13 Ch. D. 696, 712.) Jessel, M. R. said : "The only use of authorities, or decided cases, is the establishment of some principle which the judge can follow out in deciding the case before him." And in Owners of the Ship, Swansea Vale v. Rice, ((1911) 104 L T R 658,659.) Lord Loreburn, L. C. said :‑‑‑"Cases are valuable in so far as they contain principles of law. They are also of use to show the way in which judges regard facts. In that case they are only used as illustrations". And when broad principle has been clearly decided it is necessary to guard against the decision being weakened or frittered away by fine distinctions, as has been pointed out by Viscount Cave, L. C. in Jones v. S. W, Lancashire Coal Owners Association ((7927) A C 827, 830). The principle of Dwarkanath's case has been applied by Davis, J. C. and Lobo, A. J. C. in Khairo Soomar v. The Crown (31 S L R 470.) where the Sessions Judge had failed to put to the accused under section 342 Cr. P. C. the only circumstance which could be used in corroboration of an approver's testimony. They say that they do not see how they could anticipate what the answer of the accused might have been or say that he could give no satisfactory explanation. They ordered retrial of the accused. In Taban Lalu Shaikh v. The Crown (32 S L R 709, 714) Davis, J. C. and Havellivala A. J. C. applied the same principle where there had been a failure on the part of a Sessions judge to question the accused on a confession made to a Zamindar which had been made on integral and substantial part of the prosecution case. Davis, J. C. said at page 714 : "the failure of the judge to question the accused about it is clearly a serious omission not covered by the provisions of section 537 Cr. P. C.

" They ordered a retrial. In Crown v. Piniladho Shah and others, (I L R (1941) Kar. 532) Lobo, J. and Tyabji J applied the same principle in a case where the accused had not been questioned as to the contents of documents upon which the prosecution relied for purpose of a conviction. In Bhag wandas‑Jagan Nath v. Crown (I L R (1942) Kar. 112.) Davis, C. J. applied the same principle in a case where a Magistrate had failed to examine the accused on the one matter on which he relies for convicting him, and observed that, "even if the failure is not an illegality or something which strikes at the very root of the trial, nevertheless the failure to question the accused on that point necessarily involved a miscarriage of justice within the meaning of section 537 Cr. P. C." In A. I. R. (1947) Sind, 177, O'Sullivan, J. and Thadani, J. applied the same principle in a case where the conviction was based upon the existence of a thumb‑impression upon a window pane as to which the Magistrate had failed to question the accused. More recently, Constantine, C. J. and Muhammad Bachal, J. in Confirmation Case No. 43/52 Mahomed son of Umedali Khalro v. The Crown decided on 12th December 1951 applied the same principle, and followed the case of Rahimbux v. The Crown (PLD1952F.C. 1.) though in Criminal Appeal No. 19 of 1952 Haji son of Saffar decided on 2nd May 1953, they said their dictum in the former case that the examination of the accused by the Committal Magistrate was no substitute for examination by the Sessions judge, had been made to indicate to the Sessions judges that they must not rest content with the examination of the accused in the Committal Court. They held that if the Committal Magistrate has examined the accused on the circumstances on which the Sessions Judge has omitted to examine him, the question arises whether any, injustice to the appellant has resulted. They held it had not. The principle of Dwarkanath's case was again applied, though tacitly, in Confirmation Case No. 4 of 1953, Sargul v. The Crown, decided in May 1953 by Agha, J, and myself, and by the same Bench again in Confirmation Case No. 22 of 1953, Bhai Khan and others v. The Crown, decided on 20th July 1953. If the principle of Dwarkanath's case is binding upon this Court, I think it follows that if the accused has not been questioned by the trial Court as to any circumstance appearing in evidence against him at the trial, then the circumstances upon which the prosecution relies for the purpose of convic tion, cannot be used against him. It follows further that if use is to be made of these circumstances against the accused, the case would have to be remanded so that he may be ques tioned to enable him to explain them. In Local Government Board v. Arlidge ((1915) A C 120= (1915) 84 L. J, K. B. 72, H. L.), Viscount Haldane, L. C. said that he agreed with the view expressed in an analogous case by Lord Loreburn, L. C. in Board of Education v. Rice ((1911) A C 179=80 L. J. K. B. 796, H. L.) "where he laid down that, in disposing of a question which was the subject‑matter of an appeal to it, the Board of Education was under a duty to act in good faith and to listen fairly to both sides in as much as that was a duty which lay on everyone who decided anything". Much depends upon the gravity which the judicial mind views an omission to question the accused person at his trial as to the circumstances appearing in evidence against him. I think it is but right to regard the provisions of section 342 Cr. P. C. as a statutory expression of the principle of natural justice, that no accused person shall be condemned unheard (for under the Code the accused person as to whose conduct prosecution witnesses depose, cannot himself give evidence) and that it is but also right to regard a breach of principle of natural justice as fundamental ; to regard it otherwise is to acquiesce in the proposition that a man may be condemned unheard at his trial. I can see no difference between a case where a Sessions judge has omitted altogether to examine the accused and the case where a Sessions judge has put questions to the accused at the trial ‑which do not draw his attention to the circumstances appearing in the evidence against him, and do not elecit in answer his explanation of such circumstances. In both these cases the object of section 342 remains unfulfilled. The next question is whether there has taken place a trial such as the Code of Criminal Procedure prescribes when the object of section 342 Cr. P. C. remains unfulfilled. I regard the provisions of section 342 as of the essence and an integral part of a sessions trial, without which the trial is not as the Code prescribes. I cannot conceive that the legislature intended that the accused may be tried and convicted at a sessions trial without the Sessions judge examining him as to the circumstances appearing in evidence against him in order to afford him an opportunity of explaining them. It will be useful here to consider and compare cases in which the Privy Council has held a trial to have been conducted in a manner different from that prescribed by the Code. This expression is a convenient way of saying that the breach in question is of an essential or fundamental principle, without the observance of which justice is not ensured. A breach may go to the root of a trial and if it does, there is no trial as the law requires. The importance of the principle breached is therefore pivotal. If the breach is a substantial non‑observance of a fundamental principle, it gives rise immediately to injustice. In Subramania Iyer v. Emperor (28 Indian Appeals, 257.), there was a trial on a charge containing 41 acts extending over two years, in breach of section 234 Cr. P. C., which permits the joint trial of three offences of the same kind committed within a year. Lord Halsbury, L. C., dealt with the gravity of the breach in the following words at pp. 262‑3 "The reason of such a provision, which is analogous to our own provisions in respect of embezzlement, is obviously in order that the jury may not be prejudiced by the multitude of charges and the inconvenience of hearing together of such a number of instances of culpability, and the consequent embarrassment both to judges and accused. It is likely to cause confusion and to interfere with the definite proof of a distinct offence, which it is the object of all criminal procedure to obtain. The policy of such a provision is manifest, and the necessity of a system of written accusation specifying a definite criminal offence is of the essence of criminal procedure." I regard the examination of the accused at his trial under section 342 to be equally of the essence of our criminal procedure, and venture to think that this view is implicit in the principle of Dwarkanath's case. This case has been regarded in Pulukuri Kottaya and others v. Emperor (A I R (1947) P C 67, 69), as falling within the description of a trial conducted in a manner different from that prescribed by the Code. In Lawrence v. Crown ((1933) A C 699.), which arose from Nigeria, Lord Atkin said at p. 708:

there has to be considered the alteration and recording of the sentence in the absence of the accused. It is an essential principle of our Criminal Law that the trial for an indictable offence has to be conducted in the presence of the accused ; and for this purpose trial means the whole of the proceedings, including sentence

The result is that sentence passed for felony in the absence of the accused is totally invalid." In Mahlikilili v. The King (A I R (1943) P C 4), which arose from Swaziland, Atkin said at p. 7 :‑ "What then should be the result of a failure to comply with the Proclamation and to hold the whole of the pro ceedings in public? In this country the omission would be a fatal flaw entitling a convicted criminal to have the con viction set aside. An analogous case is that presented by case where the Judge has either pronounced sentence or altered sentence in the absence of the accused, see Lawrence v. The King (supra) where a judge in Nigeria had altered sentence both in the absence of the accused and when sitting in Chambers. Prima facie the failure to hold the whole of the proceedings in public must amount to such a disregard of the forms of justice as to lead to substantial and grave injustice within the rule adopted by this Board in dealing with criminal appeals." Here, injustice resulted from the very breach of an essential principle. In Ras Behari Lal v. Emperor ((1933) P C 208.), there had been a trial by the Sessions Judge sitting with a jury of seven, six of whom found the accused guilty of murder and rioting, and one juror as was subsequently discovered, did not understand English in which language some of the evidence was given and in which the addresses of the advocates were made and the charge of the Sessions Judge delivered: In that case Lord Atkin observed at page 209: "They (their Lordships) think that the effect of the incompetence of a juror is to deny to the accused an essential part of the protection accorded to him by law and that the result of the trial in the present case was a clear miscarriage of justice." Here again, injustice resulted from the very breach of an essential principle. In Adam Haji Jama v. The Crown (A I R (1948) P C 63=P L D 1947 P C 381.) which arose from Somaliland, the Judge proceeded with a trial with the aid of Assessors in the absence of a Public Prosecutor. . Sir John Beaumont said at page 66 :‑ "

the Judge himself undertook the duties of the prosecution. This was the real vice in the trial. Breaches of particular provisions of the Ordinance might have been cured under section 393 but the combination in one person of the duties of prosecutor and Judge, in their Lordships' view, prevented the trial from being one conducted sub stantially in the manner required by the Ordinance. The accused did not have the protection to which they were entitled under the Ordinance, namely to be tried by a Judge whose mind was not, and could not have been, affected by assuming the duties of a prosecutor. The curative provisions of section 393 of the Ordinance (which is expressed in substantially the same terms as section 537 Criminal Procedure Code) cannot be called in aid to support a trial conducted in a manner substantially different from that laid down in the Ordinance Pulukuri Kotayya v. King‑Emperor (74 I A 65.)". In Tumahole Bereng v. The King (A I R (1949) P, C. 172, 179=P L D 1949 P. C. 47), where an assessor in Basuto land in anticipation of being chosen had acquainted himself in good faith with certain material aspects of the Crown case in company of Crown witnesses, and had interro gated the approver who gave evidence regarding several important aspects of his evidence, Lord Mac-Dermott said that the assessor's subsequent participation in the trial was highly irregular, as "Justice must not only be done but must manifestly be seen to be done" and that the assessor's conduct was such as to cause doubt in the public mind as to the complete impartiality of the proceedings in which he subse quently took part. These cases and the observations therein made, have been of assistance to me in arriving at the conclusion which I have already expressed, that where the object of section 342 remains unfulfilled at the sessions trial the trial is otherwise than as the Code of Criminal Procedure prescribes. The result is that if use is to be made of the circumstances appearing in the evidence against the accused at the trial, the case must be remanded so that he may be questioned to enable him to explain them. The same is the result when the principle of Dwarkanath's case is applied. Even if I am mistaken in that conclusion, I would hold that injustice has in fact occurred within the terms of section 537 Cr. P. C. I proceed now to examine cases of the Privy Council and the House of Lords in which contentions that no injustice has resulted or that no miscarriage of justice has taken place, have been considered. In Abdul Rahman v. The King‑Emperor (54 I A 96), where there was involved a breach of section 360 Cr. P C Lord Hillimore distinguished Subramania Iyer v. Emperor (28 I A 257), saying that the procedure adopted in that case was "one which the Code positively prohibited and it was possible that it might have worked actual injustice to the accused." At page 110 his Lordship observed: "If indeed it were shown that the omis sion (to comply with the section) did lead or even with probability might have led to some material error in the depositions not being checked; the case would be otherwise." In Pulukuri Kottaya and others v. Emperor (A I R (1947) P C 67), where there was a breach of section 162 Cr. P C but the Privy Council found that the police statements were included in the notes of the Circle Inspector which were made available to the accused at the earliest opportunity and therefore no injustice had occurred, Sir John Beaumont in dealing with the question of prejudice to the accused arising from the statements of prosecution witnesses to the police not being made available to him for the purpose of cross‑examination, observed at page 69: "It is clear from the facts narrated above that there was a breach of the proviso to section 162 Cr. P C and that the entries in the police Sub‑Inspector's note book were not available to the accused, as they should have been, for the cross‑examination of the witnesses for the Crown. The right given to an accused person by this section is a very valuable one and often provides important material for cross‑examination of the prosecution witnesses, However slender the material for cross‑examination may seem to be, it is difficult to guage its possible effect. Minor inconsis tencies in his several statements may not embarrass a truth ful witness, but may cause an untruthful witness to pre varicate, and may lead to the ultimate break‑down of the whole of his evidence and in the present case it has to be remembered that the accused's contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to section 162 as a matter of gravity. Baliram v. Emperor (A I R 1945 Nag, 1), where the record of statements made by witnesses had been destroy ed, and Emperor v. Bansidhar (53 All, 458.) where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused." In Tumahole Bereng v. Emperor (AIR1949PC173‑179=PLD1949PC47.), in dealing with the contention of counsel for the Crown that it had not been shown that what the assessor Mr. Driver had done before the trial had prejudiced the appellant, Lord Mac-Dermott said that the irregularity which had taken place raised suspicions which were in the realm of conjecture, that the assessor had a biased mind as having formed a definite view of what had occurred or of the credibility of witnesses and that he had been told more than could be legally proved, but that"

where the irregularity complained of may reasonably engender suspicions of this nature it cannot be left out of account

" There is a tendency to treat the statement of an accused in the Committal Court (which is brought on the record of the sessions, trial as evidence under section 287 Cr. P C) as equivalent to his statement in the Sessions Court. In sub stance it is so to treat it to hold either, that when the accused has been questioned as to the circumstances in the Committal Court, he need not be questioned upon them again in the Sessions Court, or that, when an answer has been obtained in the Committal Court, that is his explanation of the circumstances, in the Sessions Court as well. This tendency runs counter to the object or policy of the law, for the examination of the accused has been enjoyed by the legislature in the Committal as well as the Sessions Court. The legislature knew that the circumstances against the accused appear in evidence for the first time in the Committal Court and that the accused has to be examined upon them in that Court, and yet did not exempt or except an examina tion in the Sessions Court, upon such circumstances as have been examined upon already in the Committal Court. The reason may be that the accused may well choose to be tried, as often happens. He may then, as experience shows, either deny the circumstances in evidence against him or say that he will make a statement in the Sessions Court. The purposes of the committal proceedings are different and have vastly different consequences from those of the trial and a statement made for the purposes of the one may not be made with the same degree of consciousness of serious consequence or in a sense of finality, as in the case of the other. It is the exami nation at the trial which is vital and final, for it is the purpose of the trial to ascertain whether the accused is guilty, the purpose of the committal proceedings being merely to decide whether he shall be tried. In Amin‑ul-Haq s case which is comparable, the Federal Court made no reference to the statement in the committal Court. It is the provisions of section 287 which render this tendency possible. They do not expressly or by necessary implication warrant the exception or commission in the examination of an accused at the sessions trial, of such circumstances as have been examined upon already in the Committal Court. In my view, it is not possible to anticipate what the accused would say were he to be examined at the sessions trial as to the circumstances appearing in evidence against him or to say that he would be able to give no satisfactory expla nation, if questioned (of 31 S L R 470, 478), the statement made to the Committal Magistrate notwithstanding. Cases are not unknown where the accused amplifies what he said to the Committal Magistrate or makes a divergent or an entirely new statement, and when the divergence or difference is put to him (as it must under section 342 Cr. P C if it is to be used against him), he explains it, for example, as having been made upon the advice of an advocate or some person he met in the jail. Particularly a denial by the accused in the Committal Court is not to be regarded as evidence of a final absence of explanation at the trial, for a denial is an obvious refuge of one who prefers to wait for the trial to put forward an explanation. When the accused makes in the trial Court a divergent or an entirely different statement from that in the Committal Court, the trial Court is not absolved of the duty to consider either of them. It may be that the divergence will diminish the value of the statements which may become less convincing but there is still the preponderating question whether either of their contains a reasonable explanation of the circum stances in evidence against him. In Zahir‑ud‑Din v. The Emperor (AIR(1947)PC75=PLD(1947)PC13,), where a witness, Mr. Roy, while giving evidence made use of a statement made by him to the police, Lord Normand observed as follows at page 78:‑ "The further observations of the learned judges that there was no substantial reason to think that Mr. Roy's evidence unaided by the written statement would have been in any material point different from the evidence which he gave, and that no real t prejudice was caused to the appellant by the use of the statement, are in the opinion of their Lord ships unfortunate and ill‑founded. It is impossible to say what Mr. Roy's evidence would have been if he had not used the statement to aid his memory; and it is also impossible to say that prejudice may not have been suffered by the appellant." Similarly, it is impossible to say what the accused would have said if questioned in the Sessions Court upon the circumstances in evidence against him there. If it were sufficient for the High Court to speculate what the accused could or would have said if questioned, his examination in the trial Court would not have been enjoined. There is no warrant for substituting the speculation for the examination. There was no such speculation by the Privy Council in Dwarkanath's case, or by the Federal Court in Rahimbux's case or in Amin‑ul Haq's case. I now come to the House of Lords cases. The proviso to section (4) I the Criminal Appeal Act 1907 says:- "The Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred." In Woolmington v. The Director of Public Prosecutions ((1935) A C 462, 482, 483.), the House of Lords refused to follow the Court of Criminal Appeal in applying this proviso to the case than before the House. Viscount Sankey L. C. observed :‑ "We cannot say that if the jury had been properly directed, they would have inevitably come to the same conclusion." Two years earlier in Lawrence v. The Crown ((1933) A C 699,707.), the Privy Council had considered a like or near situation, and Lord Atkin had observed:‑ "But, speaking generally, it has to be remembered that it is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt : and it is essential that the tribunal of fact should understand this. Unless the judge makes sure that the jury appreciate their duty in this respect his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty given by a jury who have not taken this fundamental principle into account is given in a case where the essential forms of justice have been disregarded. In such a case, unless it can be predicted that properly directed the jury must have returned the same verdict, a substantial miscarriage of justice appears to be established." In Stirland v. The Director of Public Prosecutions ((1944) 2 All. Eng‑Reports 13, 14, 15.), H. L. Viscount Simon, L. C. observed:‑ "When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore no miscarriage of justice and this is the proper test to deter mine whether the proviso to the Criminal Appeal Act, 1907, section 4 (1) should be applied. The passage in Woolming ton v. Director of Public Prosecutions at page 483, where Viscount Sankey, L. C. observed that in that case, if a jury had been properly directed, it could not be affirmed that they would have `inevitably' come to the same conclusion should be understood as applying this test. A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence; but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situa tion where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict. That assumption, as the Court of Criminal Appeal intimated, may be safely made in the present case." The Court should, therefore, be able to predicate that inevitably and without doubt the result would have been the same if the accused had been questioned by the Sessions Judge as to the circumstances appearing in evidence against him at the trial. This is a very difficult, if not an impossible thing to do and particularly as in this case, the statement of the accus ed to the Committal Magistrate concludes with the sentence: " I will make my statement before the Sessions Court ", and this appears to colour the denials contained in his answers to previous questions. Quite often, the accused does not wish to be discharged by the Committal Magistrate, preferring to stand his trial before the Sessions Court. As for denial, it is the obvious refuge of an accused who does not wish to put forward an explanation of the circumstances denied at the committal stage and I think it improper to infer from such a denial, that if questioned at the trial the accused would have had no explanation to give. What the accused would have said if questioned at the trial by the Sessions judge as section 342 Cr. P C requires, is not possible of anticipation, and the failure to question him necessarily involves a mis carriage of justice (of I L R (1942) Kar. 112). The three cases of the Indian Supreme Court in A I R (1951) S C 441, A I R (1952) S C 105 and A I R (1953) S C 76 which have been cited in the course of arguments are of no assistance, as they have not considered the principles which have guided my reasoning. As to whether the trial judge has complied with the provisions of section 342 Cr. P. C. I think a bare reading of the terms of that section and the questions put to the accused at the trial will show that he has not been examined as to any circumstance appearing in evidence against him at the trial and that the purpose of the section has not been carried out at all. For these reasons I would say that the provisions of section 342 Cr. P C have not been complied with and the trial is vitiated. MUHAMMAD BACHAL, J.‑(2nd February 1954)‑‑I agree in the order proposed by my Lord the Chief Judge. MUHAMMAD BAKHSH, J.‑The point referred for the decision of the Full Bench is " whether the provisions of law under section 342 Cr. P. C. have been complied with in confirmation case No. 29 of 1953 Crown v. Muhammad Shafi son of Abdul Aziz ; if not, whether the trial is vitiated." In this case ‑the murder was committed in broad daylight at 9‑30 a.m. in a Rickshaw Factory. Witnesses Fida Muhammad, Aslam and Ghulam Nabi were inside the Factory at the time. They heard the shriek of the deceased and saw him falling. Simultaneously they saw the accused standing nearby with the blood‑stained knife in his hand. Two policemen, who were on duty about twenty five paces away, were brought immediately to the spot. One of them snatched the knife from the hands of the accused and both caught hold of him. From his shirt pocket a photo of the deceased was secured. The first report was lodged immediately and after requisite investigation the accused was sent up to stand his trial. When the prosecution evidence was concluded in the Court of the Committing Magistrate, the following examina tion of the accused took place under section 342 Cr. P C :‑ " Q.‑Did you on 8th January 1952 stab Abdul Sattar to death in Star Rickshaw Factory ' near City Railway Station behind Cotton Exchange Building ? A.‑‑No. Q.‑Did Nawaz Khan. Police Constable snatch blood stained knife Article ' A ' from your hand soon after you committed murder of Abdul Sattar at the place of offence ? A.‑I do not know. Q.‑‑Were you arrested by the police at the place of offence soon after Abdul Sattar was murdered by you A.‑I do not know. Q.‑Was your personal search taken by the police ? A.‑Yes. Q. Was the photograph of deceased Abdul Sattar Exh. 11 recovered from your shirt pocket by the Police .on your personal search ? A.‑Yes. Q.‑Why do the prosecution witnesses state against you ? A:‑I do not know: Q.‑You have heard the prosecution evidence. Have you anything else to state ? A.‑I have nothing to say. Q.‑Did you and deceased Abdul Sattar use to live in Star Rickshaw Factory '? A.‑Yes. Q.‑Did you use to pay all your earnings to Abdul Sattar deceased ? A.‑I do not know. Q.‑Did you ask deceased Abdul Sattar not to associate with others ? A.‑I do not know. I will make my statement before Sessions Court." It is admitted that this statement of the accused was thorough and complete in every way. Each and every circumstance in the prosecution evidence implicating the accused directly or otherwise was put to him and he was asked to explain the same. Then the case was committed to the Court of Sessions and our learned brother Rahim Bakhsh J. sitting on the original side tried the case with the aid of jury. In the Sessions trial the evidence led by the prosecu tion was the same. The evidence in the committal proceed ings covered all the points alleged against the accused and no evidence of any other kind or on any other point was adduced in the Court of Sessions. Then came the statement of the accused under section 342 Cr. P. C. the nature of which necessitated a reference to the Full Bench, specially in view of the fact that ere this there had been no uniformity of decision on this point by the Benches of this Court. The statement of the accused recorded in the Sessions Court reads as follows :‑ Q.‑Your statement recorded in the lower Court has not been read out to you, was it correctly recorded ? A.‑Yes. Q.‑You have heard the prosecution evidence led against you in this Court, what have you to say ? A.‑I do not know anything about this incident. I know nothing. Q.‑Do you want to add to what you have stated in the lower Court ? A.‑No Sir." It is being asserted that this statement does not comply with the provisions of section 342 but as there had been no prejudice to the accused the irregularity or illegality could be cured under section 537 Cr. P. C. My own view, however, is that the requirements of law under section 342 have been fully complied with and consequently the question of prejudice does not at all arise. My reason for this opinion is simple. The only object of section 342 is to assist the accused to understand his own case and enable him to explain the allegations made against him. For that a purpose it is necessary that the Court should draw the notice of the accused to every circumstance appearing in the evidence against him and call upon him to explain the same. We must therefore examine this particular case in light of that principle and see whether the accused in this case did understand his case and whether he was allowed full liberty to say what he liked. There were only three kinds of evidence offered by the prosecution to connect the accused with the guilt. The first was the ocular testimony, the second was the securing of blood‑stained knife from the hands of the accused immedi ately after occurrence and the third was the arrest of the accused on the spot. In the Court of the Committing Magistrate the attention of the accused was drawn not only to those pieces of evidence but he was also asked about other circumstances which had even a remote bearing on his guilt. It is thus clear, beyond all doubt, that before the case was committed to Sessions the accused did understand his case fully and he was allowed every opportunity to answer and explain every thing appearing in the evidence against him in any manner that he pleased. In the Court of Session every question asked from the accused and every answer made by him was read over to him and he was asked whether they were correctly recorded. After the accused answered in the affirmative he was asked whether he wanted to aid anything to the same. He replied in the negative. That the learned Judge asked him if he wanted to say anything after hearing the evidence in the Sessions Court. The accused then denied all knowledge of the incident. In view of all these facts it is difficult for me to say that in this case the learned Sessions judge did not assist the accused or failed in his duty to do so in order to enable him to under stand the case and explain it. It was argued that the Sessions judge should have himself drawn the notice of the accused once again to every piece of evidence and called upon him to answer ‑the same before it could be said that he com plied with the provisions of section

342. With this conten tion with all respect, I am unable to agree. Then the learned Sessions judge read out to the accused every question and every answer recorded by the Committing Magistrate, it was no longer necessary for him to give a "third reading" as if, to the same questions, if an accused person were to say that his statement is the same as he made in the Committal Court, section 342 does not dictate that the learned Judge should still repeat the same questions over again. The object of section 342 is to assist the accused and not to " pester " him, if I may be permitted to use that word. I am aware of certain authorities which say that the Sessions judge must examine the accused fully even though he may have been questioned generally by the Committing Magistrate. The latest ruling on the point is reported in A I R (1953) Pepsu

186. There are also authorities which lay down to the contrary vide 9 Bom. L. R

730. In my opinion, however, each case must be decided on its own particular facts and it must always be left to the trial judge to consider the facts and circumstances of each case and then proceed under section

342. In this behalf one must not lose sight of section 287 Cr. P. C. The object of that section in bringing the statement of the accused recorded by the Committing Magistrate on to the record of Sessions case is that this statement must be considered fully by the Sessions Court. Heaton, J. while delivering judgment of the Bench in the case of Raju Ahilaji reported in (9 B L R 730) was of the view that the proposition that the accused should be examined by the Sessions judge even though he may have been questioned generally by the Committing Magistrate, was open to a serious doubt. Apparently the learned judge was relying on the effect of section 287 Cr. P C, That case was however remanded for re‑trial on the ground that the Sessions judge had not at all examined the accused. Such a case stands on an entirely different footing from the present case which we are asked to deal with. In this case the learned' Sessions Judge read out every question and every answer recorded by the Committing' Magistrate and allowed the accused full liberty to say what he liked. To lay down in a case of this kind that the Sessions Judge should have repeated the very same questions over again will in my opinion be tantamount to the deletion of section 287 altogether as if it does not exist on the Statute Book. There is a difference between the action of section 342 alone and the joint action of section 342 read with section

287. In the trial of a warrant case the Magistrate has to question the accused generally on every piece of evidence. In the Sessions trial however the position naturally becomes different. The statement recorded by the Committing Court has to be brought on the record of the Sessions case and forms evidence in the Sessions case. In that case, in my opinion, it is not at all necessary to repeat the very same questions over again. The purpose of section 342 is fully carried out if the accused is enabled to understand his case and to answer the same. Our attention was drawn to the case of Mathani Goundar reported in (A I R (1952) Mad. 812.) in which it was laid down that where all the circumstances have been put in the Committing Magistrate's Court and no circumstances on which the Sessions judge relies appear in the evidence in the Sessions Court which have not already appeared in the Committing Magistrate's Court and which have not been put to the accused, it cannot be said that section 342 has not been complied with because the Sessions Judge himself has not put separate simple questions to the accused which he should do in order to observe the demeanour of the accused explaining the incriminating circumstances alleged against him. While with all respect to the learned Judges who pronounced this judgment, I agree that in a case of this kind the provisions of law under section 342 must be held to have been fully complied with, I do not‑‑ agree that the observation of the demeanour of the accused is relevant for the purpose. There is a difference between the demeanour of a witness in the box and the demeanour of the accused in' the dock. While the‑law' enjoins on a witness to speak the truth, all truth and nothing but the truth, the same law permits an accused person 'to speak a lie. Subsection (2) of section 342 clearly lays down that the accused shall not, render himself liable to punishment by giving false answers, to the questions that are put to him. In that case, the~ demeanour of an accused person while giving his statement has nothing to do with the appreciation of evidence. In‑view‑ of all these reasons I am unshaken in my belief that the provisions of law under. section 342 Cr. P. C. have been fully complied with‑in this case and consequent the question of prejudice does not arise. But since the majority decision is going to be in the negative on the first question, I agree with the learned Chief judge that the trial is not vitiated on that account. Full Bench Per Curiam CONSTANTINE, C. J., AGHA, VELLANI, MUHAMMAD BACHAL, AND MUHAMMAD BAKHSH, JJ.‑(2nd February, 1954).‑‑The case be returned to the learned referring Judge for disposal in accordance with the decision of the majority of the Full Bench on the questions referred. JUDGMENT MUHAMMAD BAKHSH, J.‑(8th February, 1954).‑The Full Bench have heard this matter and decided by majority that the provisions of law under section 342 Cr. P. C., have not been complied with and that the trial has riot been vitiated. In accordance with that finding I hold that the provisions of law under section 342 Cr. P. C., have not been complied with in this case, but it is not necessary to remand the case for retrial from the stage of the statement under section 342 Cr. P. C. because the trial has not been vitiated and there has not been a failure of justice in this case. Irregularity or illegality committed on account of non‑compliance of the provisions of section 342 can be cured under section 537 Cr. P. C. In view of this I maintain the conviction of the appellant under section 302 P. P. C. and confirm the sentence of death. Order accordingly. A.H. Appeal dismissed.