1988 PLP 729 (MLD)

P L D 1986 P S C 242; P L D 1987 Kar. 50 and Jan Muhammad v. The State 1987 P Cr.L J 2302 ref. I.A. Hashmi for Appellant. Imam Bux Shaikh for the State. Date of hearing: 9th June, 1988. This criminal appeal is directed against the judgment of the learned special Judge, Anti‑Corruption (Provincial), Karachi, whereby he convicted the appellant under section 162, P.P.C. read with section 5(2), Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. for three months and to pay fine of Rs.2,000 or in default to undergo R.I. for one month more.

2. Mr. Hashmi has raised a preliminary objection, that the mandatory provision of section 340(2), Cr.P.C. has not been complied with as the appellant was not examined on oath to disprove the charges or allegations made against him‑ Reliance is placed on P L D 1986 P S C 242 and h L D 1987 Kar.

50. Reference may also be made to the case of Jan Muhammad v. The State 1987 P Cr. L J 2302. In this case on reference from a Single Judge, a Division Bench was constituted to examine the question, as to whether section 341(2), Cr.P.C. does or does not cast duty upon the trial Court to record the evidence of accused as envisaged therein. The Division Bench gave the following opinion. The evidence on oath by the accused required to be given under subsection (2) of the section 340 contained in Chapter XXV of the Code of Criminal Procedure in disproof of the charges or allegations made against him or the co‑accused charged or tried together with him at the same trial is, therefore, integral part of the trial of the cases. Of course, the accused has option of leading evidence in defence under Chapter XX or, as the case may be, under Chapter XXII‑A, no option in giving evidence himself on oath as enjoined under subsection (2) of section 340 and, therefore, duty is cast upon the trial Court to call upon him to give evidence on oath and unless that is done, the trial of the case is not complete. We are, therefore, of the opinion that the obligation of giving evidence on oath cast on the accused under subsection (2) of section 340 of the Code of Criminal Procedure casts obligation on the trial Court to call upon the accused to give evidence on oath and record his evidence unless he declined to do so. Accordingly, answer to the question referred for the opinion of the Division Bench is in affirmative."

3. In view of the decision of the Division Bench, which is binding upon this Court, and as this mandatory requirement of law has not been complied with in this case, the sentence and conviction is liable to be set aside. I accordingly set aside conviction and sentence awarded by the learned trial Court, and remand back the case to the learned trial Court for retrial from the stage, when the appellant is to be examined under section 340(2), Cr.P.C. The learned trial Court to give fresh finding, unprejudiced to the previous decision, after compliance with the said provision of law. S.G.D./T‑35/K???????????????????????????????????????????????????????????????????????????????????? Order accordingly.