The facts of this case are that Muhammad Ibrahim petitioner was challaned in a case under section 354, P.P.C. For molesting, Met. Zenab Bibi complainant on 9-8-1985 at Juki Degarwela in the area of .Village Rode, He was tried by a Magistrate 1st Class Johar Abed under section 354, P,P.C., who vide judgment, dated 25-2-1986 sentenced him to one year R.I. Muhammad Ibrahim challenged his conviction and sentence before Sessions Judge, Khushab through an appeal Which was dismissed on 13-4-1986. The conviction and sentence under section 354. P.P.C. Was maintained.
2. I have heard the learned counsel for the petitioner and the State and have also perused the reCord.
3. After completion of the prosecution evidence the statement of accused Muhammad Ibrahim under section 342, Cr.P.C. Was recorded on 4-2-1986. He was asked whether he wished to examine himself in his own defence to rebut the prosecution case. His reply was in negative. Thereafter, accused examined two defence witnesses and he was convicted as stated above. It is apparent from the record that the statement of Muhammad Ibrahim under section 340(2), Cr.P.C. On oath was not recorded. The provisions of subsection (2) of section 340, Cr.P.C. Were amended on 21-2-1985, vide Ordinance No.XII of 1985. This amendment provided that an accused person shall give evidence on oath in disptoof of the charges or allegations against him. The use of word 'shall' leaves no discretion either with the Court or with the accused. In this matter it was, therefore, necessary for the trial Court to record the statement of Muhammad Ibrahim on oath under subsection (2) of section 340, Cr.P.C. This question was examined in detail by this Court in Rizwan v. The State PLD 1986 Lah.
222. The omission to record the statement on oath under section 342(2), Cy.P.C, was no an irregularity but an illegality not curable under section 537,' Cr.P.C. The conviction and sentence of Muhammad Ibrahim is set aside and hi case is remanded back to, the trial Court for fresh decision according to law. The trial Court will proceed from the stage of the "wording of the statement of accused under section 340(2), Cr.P.C. And the prosecution witnesses need not to be recalled. The accused is on bail, He is directed to appear before the learned Sessions Judge, Khushab on 12-7- 1986. The learned Sessions Judge will entrust this case for trial to a Magistrate of competent jurisdiction. This revision is disposed of.