2019 P Cr (PLP)
BASEERULLAH — Appellant Versus ANWAR ALI SHAH and another — Respondents
| Citation | 2019 P Cr (PLP) |
| Forum / Court | Peshawar (Bannu Bench) |
| Bench Members | N/A |
| Parties | BASEERULLAH — Appellant Versus ANWAR ALI SHAH and another — Respondents |
| Primary Law | (d) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2019 P Cr (PLP)?
This judgment primarily cites: (d) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898), (c) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2019 P Cr (PLP)?
The case was heard and decided by the Peshawar (Bannu Bench) bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2019 P Cr (PLP) (BASEERULLAH — Appellant Versus ANWAR ALI SHAH and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Farooq Khan Surani for Respondent.
- 3. When learned counsel for respondent was confronted with the above contention of the learned counsel for the appellant, he sought time for preparation. He was given one day to rebut the contention of the learned counsel for the appellant, but today when he appeared before the Court he frankly conceded that the appellant was convicted and sentenced without recording his statement under section 342, Cr.P.C., which is mandatory requirement under the law.
Headnotes / Summary
S. 342
Effect
Accused had assailed order of Trial Court whereby he was convicted
Accused pleaded that Trial Court convicted and sentenced him without recording his statement under S. 342, Cr.P.C.
Affording an opportunity to accused under S. 342, Cr.P.C. was mandatory and he had to be heard in detail to enable him to explain his position and lead any evidence in defence and also to record statement on oath to disprove allegations levelled against him, if he opted to do so
Where the accused was not questioned at all or his attention to an important piece of evidence was not invited, the omission so made would be an incurable illegality and fatal
Appeal was allowed by setting aside conviction and sentence recorded by Trial Court and the case was remanded to Trial Court with the direction to record statement of accused under S. 342, Cr.P.C.
S. 342
Examination of accused under S. 342, Cr.P.C. is based on maxim "audi alteram partem", that no one should be condemned unheard and intended to offer him full opportunity to explain all incriminating circumstances appearing in evidence against him.
S. 342
Interpretation and scope of S. 342, Cr.P.C.
Section 342, Cr.P.C. has two parts
First part gives discretion to the court whereas the second part is mandatory
Court under the first part can put such questions to the accused which deemed appropriate in arriving at just conclusion whereas under the second part, examination of accused is must to point out salient points appearing in evidence against him and to ask for an explanation.
S. 342
Non-examination of accused under S. 342, Cr.P.C.
Effect
Where the accused was not questioned at all or his attention to an important piece of evidence was not invited, the omission so made was an incurable illegality and fatal.
Judgment & Decree
SHAKEEL AHMAD, J.
This criminal appeal has been preferred against the judgment dated 28.10.2016 passed by the learned Sessions Judge-II, Bannu whereby the appellant was convicted under section 3 of Illegal Dispossession Act, 2005, and sentenced to six (6) months' SI with a fine of Rs.10,000/-(Ten thousand) and in default thereof to undergo further one (01) month's SI.
2. At the very out-set the learned counsel appearing on behalf of the appellant contended that the appellant has been convicted and sentenced without recording his statement under section 342, Cr.P.C., therefore, the conviction and sentence recorded by the learned trial Court is illegal and not sustainable in the eyes of law.
3. When learned counsel for respondent was confronted with the above contention of the learned counsel for the appellant, he sought time for preparation. He was given one day to rebut the contention of the learned counsel for the appellant, but today when he appeared before the Court he frankly conceded that the appellant was convicted and sentenced without recording his statement under section 342, Cr.P.C., which is mandatory requirement under the law.
4. I have given my anxious consideration to the point raised by the learned counsel for the appellant. It may be appreciated that the examination of an accused under section 342, Cr.P.C. is based on principle involved in the maxim "audi alteram partem" is that no one should be condemned unheard, intended to offer him full opportunity to explain all incriminating circumstances appearing in evidence against him.
5. Section 342, Cr.P.C. has two parts. The first part gives a discretion to the Court whereas the second part is mandatory. Under the Ist part, the Court may put such questions to the accused which may be deemed appropriate in arriving at just conclusion whereas under the second part, examination of accused is must to point out salient points appearing in evidence against him and to ask for an explanation. It will be advantageous to reproduce section 342, Cr.P.C. as under:- "
342. Power to examine the accused.
(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." Affording such an opportunity is mandatory and the accused has to be heard in detail to enable him to explain his position and lead any evidence in defence and also to record statement on Oath in disproof of allegations levelled against him, if he opts to do so.
6. It is now settled that where the accused is not questioned at all, or his attention to an important piece of evidence is not invited, the omission so made is incurable illegality and fatal. In this behalf reliance can be placed on the judgment reported as Ashraf v. The State (2004 PCr.LJ 42). In this contest reliance can also be placed on the cases reported as (1) Munir Ahmad alias Munni v. The State 2001 SCMR 56, (2) Asif Ali Zardari and another v. The State PLD 2001 SC 568, (3) Rattan Singh v. State of H.P. AIR 1997 SC 768, (4) Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 and (5) State of Maharasthra v. Sukhdeo Singh 1992 Cr.LJ 3454 (SC).
7. In the instant case trial court failed to record statement of the accused and convicted him, thus, committed an illegality whereby proceedings of the trial court stood vitiated.
8. In view of the above, this appeal is allowed, the conviction and sentence recorded by the learned trial Court is set aside and the case is remanded back to the learned trial Court with the direction to record statement of accused as required under section 342, Cr.P.C., while providing an opportunity to the parties to lead further evidence, if they opt to do so and thereafter re-write the judgment as required under the law. SA/356/P Case remanded.