' This appeal is directed against the judgment, dated 12-10-1987 passed by the learned Presiding Officer, Special Court of Sind (Banks) Karachi, in Case No,33 of 1986 convicting the appellant under Section 408 P.P.C. And sentencing him till the rising of the Court and imposing a fine of Rs,25,000, in default of payment 12 months' R.I. The appellant being aggrieved by the above judgment has filed the present appeal.
2. In support of the above appeal Mr. Rashid A. Rizvi. Learned counsel for the appellant, has urged that there was material irregularity in the trial inasmuch as the appellant was not asked in terms of subsection (2) of section 340 of the Criminal Procedure Code to examine himself on oath in defence. In furtherance of his above submission, he has referred to subsections (8) of section 5 of the Offences in Respect of Banks (Special Court) Ordinance, 1984, which provides that:- "A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of cases by Magistrate."
He has, therefore, submitted that since there is no inconsistent provision in the above Ordinance as to exclude the application of the above provision of the, Criminal Procedure Code, the same was applicable to the trial in question. He has also referred to the case of Jan Muhammad v. The State, reported in 1987 P Cr. L J 2302, in which in para. 5, the judgment of a Division Bench dated 12-3-1987 has been referred to and a portion thereof has been reproduced, which reads as follows:- "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 of the Code of Criminal Procedure but he has 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 Division Bench is in affirmative."
3. Mr. Abul Khair Ansari, learned counsel appearing for the State, has candidly submitted that the provision of subsection (2) of section 340, Cr.P.C. Is mandatory which has not been complied with in the present case.
4. We, therefore, allow the above appeal and set aside the conviction and sentence but would remand the case to the learned Presiding Officer, Special Court of Sind (Banks) Karachi, for complying with the above provision of the Cr.P.C.