1. This Criminal Miscellaneous Application has been filed by the present applicant seeking the quashment of the judgment passed by the two Courts below and sentence awarded to him.
2. Briefly the facts are that the present applicant was challaned for offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 by Taluka Police Nawabshah. According to prosecution the S.H.O. Of the Town Police Station, Nawabshah had raided the house of the accused on the basis of spy information and recovered 52 liters Country-made wine (ALCOHAL). Some of that quantity had been separated and sent to Chemical Analyser for his report. The applicant was arrested and sent up for trial before F.C.M, Nawabshah from where the case was transferred to Court of Joint Civil Judge and F.C.M., Nawabshah. Charge was framed by the trial Court under the above said sections to which the applicant pleaded not guilty and claimed trial. During the course of trial two witnesses had attended on behalf of the prosecution but they were given up by the prosecution. However, the Court had issued summons for the remaining witness. The present applicant is said to have given an application for recording of his statement under section 342, Cr.P.C. On the ground that he is a poor man and has sufficiently suffered the rigour in the case. On such application the trial Court recorded the statement of the accused which is as under: -- Q. It is alleged that on 7-2-1991 Town Police raided your house and secured 52 liters Country-made wine from your house in your presence. What have you say?
3. A. Yes, Sir.
4. Q. At this stage why you plead guilty?
5. A. I am poor man and I am very old man. I could not bear the expense of this case.
6. Q. Have you anything else to say?
7. A. I am poor man and I have six children---4-daughters and 2 sons, I pray for mercy.
8. The trial Court after recording such statement and without giving the choice to the accused to examine himself on oath or even asking him if he wanted to lead any evidence in defence passed the judgment whereby the applicant was convicted and sentenced to suffer till rising of the Court and to pay a fine of Rs.400 or in default to undergo S.I. For one month. The Sessions Judge, Nawabshah taking suo motu cognizance in the matter instituted the Criminal Revision No.63/93 and passed impugned order enhancing his punishment to R.I. For one year and maintaining the same fine. Being aggrieved the applicant has preferred this application under section 561-A, Cr.P.C.
9. I have heard Mr. Abdul Hai Memon the learned counsel for the applicant as well as Mr. Shaft Mohammad Memon, A. A-G. Sindh. I have also perused the two judgments and the other record placed on the file of this case.
10. At the very outset I regret to state that the First Class Magistrate who had dealt with the case does not appear to be conversant even with the basic procedure of criminal cases as contained in Criminal Procedure Code. In the present case the accused had pleaded not guilty and claimed the trial and in such case the statement of accused under section 342, Cr.P.C. Could not have been recorded inasmuch as no evidence had been brought on record. It will be appropriate to reproduce the said provision which reads as under: -- Section 342 Power to examine the accused_---(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by subsection (2) of section 340 no oath shall be administered, to the accused.
11. The above provision very clearly provide that such statement is to be recorded after the witnesses for the prosecution have been examined and before the accused is called for his defence. There is another glaring irregularity inasmuch as the provision of section 340, Criminal Procedure Code have not been complied with. The said provision reads as under: -- Section 340. Right of person against whom proceedings are instituted to be defended and his com .Ten to be a witness.---(1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may or might be defended by a pleader.
(2) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath. In disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial: Provided that he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried or is of bad character, unless--
(i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged for which he is being tried; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or
(iii) he has given evidence against any other person charged with or tried for the same offence.
12. This provision in subsection (2) shows that it is mandatorily required that the accused be offered the chance to examine himself on oath. It may also be observed that in the present case no offer has been made to the accused if he desired to examine any witness in his defence. In view of the above --discussed irregularity and non-compliance of mandatory provisions, I am of the view that the- trial stands vitiated.
13. It may further be observed that in this case if at all the Court intended to take a lenient view and sympathetic consideration to acquit the accused for the reasons mentioned therein, the Court could have exercised the jurisdiction under section 249-A, Cr.P.C. As obviously the prosecution was not interested in leading any evidence which fact is clear from the prosecutor's (conduct giving up his witnesses.
14. In view of the above discussion I allow this application and direct to quash the judgment, conviction and sentence awarded by the two Courts below. Accused shall stand acquitted. He is on bail his bail bonds are cancelled.