P L D 1960 Dacca 13 (PLP)

This Rule was issued at the instance of the four petitioners, of whom one only has been convicted under section 325 of the Pakistan Penal Code and the others have‑ been convicted under section 324 of the Pakistan Penal Code. Petitioner No. 1, con victed under section 325, P. P. C. has been sentenced to suffer rigorous imprisonment for six months and the others convicted under section 323, P. P. C. have been sentenced to pay a fine of Rs. 200 each, in default to suffer rigorous imprisonment for 40 days each. Out of the fine, if and when realised, a sum of Rs: 200 has been awarded to P. W. 1 as compensation for his injury.

2. The petitioners were first tried by a Magistrate, 1st class, Jhenidah, Jessore. The appeal preferred by them against the afore said conviction has also been dismissed by the learned Sessions Judge of Jessore. The petitioners have now come up in revision to this Court, and the only point that has been urged is that the examin ation under section 342 of the Criminal Procedure Code has been improper and has caused them serious prejudice.

3. It is urged that in this examination under section 342, Cr. P. C., all that the petitioners were asked was as to what was their reply having heard the evidence and if they had' anything further to say. They answered that they were innocent. They were not asked if they would like to adduce any defence evidence. It is contended that the examination under section 342 of the Criminal Procedure Code is made after the examination and cross‑examination of the prosecution witnesses and before the accused is called on for his defence. Section 342, Cr. P. C., also permits the Court to ask the accused to explain any circumstances appear ing against him at any stage of any inquiry or trial. In these circumstances, the accused were under the impression that if the examination is held after the close of the prosecution evidence and before they ace called on for defence, they would in the usual course be asked if they would adduce any defence evidence and since they were not so asked they could not say anything and thus they did not get the opportunity of producing their defence evidence.

4. In this connection, my attention has also been drawn to section 255, Cr. P. C., which requires that after the charge is read over and explained to the accused he shall be asked whether he is guilty or has any defence to make. I have examined the charges framed by the trying Court. It does not appear from the copies on the record that the accused Were even at that stage asked if they had any defence to make. All that is in the record is that they pleaded not guilty and claimed to be tried.

5. Taking into account the purfunctory nature of the examination under section 342, Cr. P. C., and the fact that the accused were never called upon to indicate as to whether they had any defence to make or any defence evidence to adduce, it seems to me that the complaint is legitimate. It may well be that the accused persons were misled into the belief that the stage for calling of the defence evidence would arise after they had been asked by the Court if they wished to adduce any such defence.

6. In these circumstances, I am reluctantly compelled to accede to the request of the learned Advocate appearing for the petitioners and to set aside the convictions and sentences of the petitioners and remand the case for a re‑hearing in accordance with law to the Court of first instance. This does not, however, mean that the evidence must be taken de novo. The retrial will com mence from the stage at which the examination under section 342, Cr. P. C., has to be made. In other words, there will be a fresh examination under section 342, Cr. P. C., namely, first the salient circumstances and features of the evidence will be put to the accused and they will be asked to give their explanation, if any, for the same. Thereafter they must be asked if they wish to adduce any defence evidence, and if any defence evidence is adduced, that defence evidence must be taken and a proper judgment written after the consideration of such evidence.

7. The Rule is, accordingly, made absolute, the judgments of the Courts below and the convictions and sentences of the petitioners are set aside and the case is sent back for re‑hearing in the manner indicated above by the Court of first instance.

8. Petitioner No. 1 will, however, during the pendency of the re‑hearing, continue on the same bail on which he was released after this Rule was issued. The question as to whether the fine, already realised from the other petitioner will be refunded or not will depend upon the result of the re-hearing. K. B. A./A. H. Rule made absolute.