1. ' The applicant/accused Khan Baig was sent-up for trial in the Court of XIII-Judicial Magistrate Karachi, (East) for offence under section 351, P.P.C. By the Zaman Town Police Station, Karachi, for having used criminal force to outrage the modesty of a young school going girl. The learned Magistrate convicted and sentenced him to suffer RI for 2 years under section 354, P.P.C. He filed appeal against the said conviction which was dismissed by the learned VIII-Additional Sessions Judge, Karachi (East), by Judgment dated 1-11-1997. The conviction and sentence was, however, reduced to one year and fine of , Rs,2,000.
2. ' The applicant/accused has filed this revision application against his conviction challenging the Judgments and orders of the two Courts mentioned hereinabove.
3. ' The brief facts of the prosecution case are that Complainant Razia Begum widow of Zakar-ur Rehman lodged report at police station wherein she stated that on 16-11-1994 at about 12-30 p.m.
4. When her daughter Sadaf Naz, aged about 13 years returned from her school and alighted from the bus, the present applicant/accused Police Constable Khan Baig who was resident of Bhitai Colony, caught hold of her daughter and massaged her breast. This incident was witnessed by many persons. Her daughter also narrated the incident to the Complainant whereupon she lodged the report.
5. ' The applicant/accused was arrested on 21-11-1994 and after usual investigation he was sent-up to stand trial. In support of its case prosecution examined P.W.1 Mst. Razia Begum. The whereabouts of P.W. Abdul Jabbar and P.W. Muhammad Iqbal were not known as the former shifted to an unknown place and the latter after retirement shifted to his native place. Such statement of process server was recorded by the trial Court.
6. ' The trial Court recorded the statement of applicant/accused under section 342 Cr.P.C. On 13-5- 1997 wherein he denied the prosecution allegations and stated that the mother of the victim had obtained loan of Rs,2,000 from him which she did not return. He stated that he was implicated in the present case on that count.
7. ' On 9-6-1997 and 12-6-1997 Court witnesses Muhammad Anwar and Muhammad Qasim were examined respectively.
8. ' On 12-6-1997 further statement of applicant/accused under section 342, Cr.P.C. Was recorded. On 27-6-1997 Mst. Razia Begum was recalled and reexamined under section 540, Cr.P.C. And she was also cross-examined. After the evidence of Mst. Razia Begum was recorded under section 540, Cr.P.C. The trial Court did not examine the applicant/accused under section 342, Cr.P.C.
9. The object of section 342, Cr.P.C. Is that the incriminating evidence which comes on the record against an accused person is to be put to him for the purpose of enabling him to explain any circumstances appearing in the evidence against him. The law is well-settled that the examination of an accused under section 342, Cr.P.C. Is mandatory as this provision was intended and introduced with an object to provide an opportunity to an accused to explain all the material circumstances, which are adduced in evidence by prosecution against them. His attention must be drawn to every incriminating/inclulpatory evidence produced against him so that he may explain it. The provisions of section 342, Cr.P.C. Are also in consonance with the principles of natural justice and they are in accordance with the injunctions of Islam. It will be pertinent to reproduce herein below the relevant observations of Hon'ble Supreme Court of Azad Jammu and Kashmir in the case of Muhammad Shafique v. The State reported in PLD 1977 SC (AJ&K) 1 relevant page at 5: ' "The principle underlying section 342, Cr.P.C. Is also borne out from the parable narrated in the Holy Qur'an. For instance, on refusal of Satan (Iblis) to bow down to Adam on the command of Allah, he was punished for his rebellious arrogance and jealous disobedience only after he was asked to explain his conduct. These facts are narrated in Sura A'raf Ayat Nos.11 to 18. In this very Sura the sotry of Adam and Eve is also narrated. When they, at the persuasion of the Satan, tasted the fruit of the prohibited tree they too were asked to explain their conduct. They confessed their guilt and consequently they were thrown out of the heaven. This is narrated in verse Nos.19 to 24. Again in Sura Mumtahina, the first verse reads as: {{ARABIC TEXT}} ' The immediate reference was to a secret letter sent by Hatib-a Mohajir from Medina to the Pagons at Mecca, in most friendly terms seeking for their protection on behalf of his wife, children and relatives-left behind in Mecca. On a message of inspiration received by the Holy Prophet, the latter was intercepted. Although the intimation was received by the Holy Prophet under an inspiration and the letter was also recovered in consequence of that inspiration; yet the Holy Prophet before deciding the guilt of Hatib, called for his explanation. Thus, from what has been said heretofore, it would appear that this rule of natural justice stems from Islamic Jurisprudence. In a Muslim Society, it is to be complied with as a command like any other Qur'anic laws."
10. Thus, it is crystal clear that the non-compliance of provisions of section 342, Cr.P.C. Amounts to illegality which is not curable under section 537, Cr.P.C.
11. ' Now the point is whether after recording further evidence, statement of an accused is essential or not? The following observations of this Court in case of Muhammad Iqbal Khetana v. The State (1992 M LD 930) provide a complete answer to this point: "11. Finally, there survives the question, whether after recording the additional evidence, further statement of the appellant under section 342, Cr.P.C. Was necessary. The examination of an accused under section 342, Cr.P.C. Is intended to afford him an opportunity to explain all circumstances appearing in the evidence against him. The opportunity must be real and adequate and the attention of he accused must be drawn to every inculpatory material so to enable him to explain it."
12. Thus, the non-examination of applicant/accused under section 342, Cr.P.C. Vitiates the trial consequently the conviction and sentence awarded to the applicant/accused by trial Court and upheld with modification of sentence by appellate Court is, set aside and the case is remanded for retrial with the direction that further statement of applicant/accused shall be recorded under section 342, Cr.P.C. And circumstances appearing against the accused in the further evidence of Mst. Razia Begum dated 27-6-1997 shall be put to him and if he produces any defence witness, statement of such witness shall be recorded and after hearing the parties, trial Court is directed to dispose of the to law.
13. ' R & P be sent to the trial Court forthwith. The trial Court is directed to dispose of the case within three months of the receipt of the R & P as the case is old relating to year 1994.
14. ' The appeal is allowed only to the above limited extent. 1 and 2 ' Through M.A. 643 of 1998 explanation for filing the Revision has been furnished, whereas by M.A. 1113 of 1998 amendment in prayer clause has been sought.
15. ' Since I have disposed of Revision, both the applications have become infructuous.
16. Ordered accordingly.