P L D 1956 (W (PLP)

A. R. CHANGEZ, J.‑

This is a jail appeal by Muhammad Ismail who has been convicted under section 363, P. P. C. and sentenced to seven years' rigorous imprisonment by Shaikh Ikram‑ul‑Haque, section 30 Magistrate of Rawalpindi. He has also been convicted under section 376/511, P. P. C. and sentenced to three years' rigorous imprisonment. Both these sentences have been ordered to run concurrently. Briefly, the prosecution case is that on the 28th of November 1955, the appellant kidnapped Mst. Jamila (P. W. 3), a girl aged about 13 years, from the lawful guardianship of her father, Allah Ditta (P. W. 2), when she was returning from her school, and kept her in confinement in his chaubara owned by Muhammad Ayyub (P. W. 11), Mst. Jamila was recovered from the chaubara on the 7th of December 1955, at the instance of the accused who had given the key (Exh. P. 13) with which the lock (Exh. P. 12) of the chaubara was opened. One of the grounds taken up in the memorandum of appeal is that the appellant was not given any opportunity to produce his defence. This contention is well‑founded and raises an important question of law. The learned Magistrate, after recording the evidence of eleven prosecution witnesses, examined the accused under section 342 of the Code of Criminal Procedure. Thereafter, the charge was framed and the accused was asked if he pleaded guilty to the charge or not, and in addition to this question, the following question was put to the accused "Will you produce defence evidence?" To this question, the accused replied in the negative. He did not plead guilty to the charge. Thereafter, the case was adjourned to the 23rd of January 1956, on which date he was asked if he wished to further cross‑examine any of the prose cution witnesses. The accused declined to do so. The remaining two witnesses for the prosecution were then examined on January 30, 1956, and the prosecution evidence was closed. The accused was then put the usual question if he wished to say anything else and if he wished to explain why the prosecution witnesses had given evidence against him. The accused stated that the witnesses had been procured by the police and if his handcuffs were removed no witness would depose against him. After recording this statement, the learned Magistrate, without calling upon the accused to enter upon his defence and produce his evidence, as required by section 256 of the Code of Criminal Procedure, fixed the 31st of January 1956, for orders and again adjourned the case to the 3rd of February 1956, when the order under appeal was announced. It appears that the learned Magistrate did not call upon the accused to enter upon his defence because he had already stated at the charge stage that he did not wish to produce any defence evidence. The question which requires determination is if the learned Magistrate could have legally put the question to the accused at the charge stage if he wished to produce defence evidence, and could the accused be deprived of his right under section 256 of the Code of Criminal Procedure to be called upon to enter upon his defence after the close of the prosecu tion evidence? Section 255 of the Code of Criminal Procedure provides as follows:‑ "The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make." Do the words in this section "or has any defence to make contemplate that the accused is to be asked at that stage if he wished to produce any defence evidence. In my judgment, this could not have been the intention of the legislature. The charge can be framed even after examin ing a single prosecution witness, and there can be no occasion or purpose to enquire from the accused at that stage if he wished to produce any defence evidence. The words "or has any defence to make" only mean that when the charge 'is framed an opportunity is provided to the accused to state anything in his defence in explanation of the charge framed against him and he is at liberty to take up any plea he likes. He may raise a technical plea, he may plead alibi or any .of the exceptions available to him under the law. But I do not think that this section empowers the Magistrate to question the accused if he wished to produce defence evidence. This, however, appears to be the general practice which is being invariably followed in the lower Courts. In my opinion, this procedure is not warranted by law and the sooner it is stop ped the better it would be for all concerned. If, therefore, the question is not permissible under the law, can the answer to such a question deprive the accused of his statutory right of being called upon to enter upon his defence after the close of the prosecution evidence? Under section 256 of the Code of Criminal Procedure, its is only at the close of the prosecution evidence that the; accused can be called upon to enter upon his defence and produce his evidence, and this statutory right of the accused cannot be abridged or curtailed in any manner. If this opportunity is denied to the accused and he is not called upon to enter upon his defence, then, in my opinion, this is a, serious defect in the mode of the trial, and the non‑compliance of this mandatory provision of law vitiates the trial. This is a valuable right of the accused and he cannot be deprived of this right which he has by law. Such disobedience of an express provision of law as to the mode of the trial cannot be regarded as a mere irregularity. It is an illegality which should be deemed to have occasioned a failure of justice. It was held by their Lordships of the Privy Council in N. A. Subramania lyer v. King Emperor (I L, R 25 Mad. 61) that the disregard of an express provision of law as to the mode of the trial was not a mere irregularity such as would be remedied by section 537 of the Code of Criminal Procedure. It was simi larly held by their Lordships of the Federal Court of Pakistan in Qadar Dad and others v. Sultan Bib‑; and the Crown (P L D 1956 F. C. 129) that where the trial is found to have been conducted in a way not authorised by law and by the rules of procedure relating to, matters of a fundamental character, the decision in such a trial whether of conviction or of acquittal is of little conse quence and the entire proceeding must be set aside irrespective of any question of prejudice to anyone. The disregard of an express provision as to the mode of trial concerning a vital matter cannot be treated as an irregularity curable under section 537, Criminal P. C. The accused may have stated anything before the close of the prosecution evidence yet under the law, after the prosecu tion evidence is closed, the accused is entitled as of right to be called upon to enter upon his defence and produce his evidence Even if he has stated earlier that he did not wish to produce any defence evidence he is within his right to change his statement at the proper stage. It is a different matter if at that stage the accused states that he does not wish to produce any defence evidence. In the present case, the appellant was not called upon to enter upon his defence at the proper stage as required by section 256 of the Code of Criminal Procedure. As such, one of the fundamental rights of the accused has been infringed which must be regarded as so serious as necessarily to occasion a failure of justice. It is tantamount to denial of a fair trial to the accused. Under the circumstances, I have got no option but to quash the conviction and sentence. I, accordingly, remit the case to the trial Magistrate with the direction that he should retry the case in accordance with law from the stage when the prosecution evidence was closed. K. B. A./ A. H. Case remanded.