' This appeal is directed against the judgment of learned Special Judge (Central) Lahore, dated 26th November 1965, whereby Sultan Ali appellant was convicted under sections 420 and 468, P. P.
C. And section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to undergo rigorous imprisonment for two years on each of the three counts and also to pay a fine of Rs, 10,000 under section 420, P. P. C. Or in default in payment of fine, to undergo further rigorous imprisonment for one year and nine months. The substantive sentences were ordered to run concurrently.
2. The learned counsel for the appellant did not touch the merits of the case. He took up the legal objection that the learned Special Judge violated the mandatory provisions of section 342, Cr. P. C.
And thus, the trial had vitiated. He drew my attention to the order of the learned Special Judge, dated 17th June 1965, which runs as follows:- "Statement of one P. W. Recorded and case for the prosecution closed. The case shall come up now at Rawalpindi, on 30-7-65, for the statement of the accused and his defence. List of witnesses to be put in within a week."
' The learned counsel urged that the learned Special Judge could call on the appellant for the defense only after his statement under section 342, Cr. P. C. Had been recorded; that the learned Judge committed an illegality in calling on the appellant for his defence before his statement was recorded under section 342, Cr. P. C. He also urged that non-observance of the mandatory provision was not an irregularity curable under section 537, Cr. P. C. But it was an illegality, which vitiated the trial.
3. I have given my deep consideration to the arguments advanced by the learned counsel for the appellant. It is necessary to reproduce the relevant provision contained in section 342 (1), Cr. P. C.
Which runs as under :- "For 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 question 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."
' Procedure for the trial of summon cases by Magistrate has been prescribed for the trial of Corruption cases by the Special Judge. It has been so provided in subsection (3) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958). Provisions of section 342, Cr. P. C.
Apply equally to summons cases as well as to warrant cases. There are two parts of the provisions of subsection (1) of section 342, Cr. P. C. The first part gives discretion to the Court to put questions to an accused at any stage of inquiry or trial without previously warning the accused, for the purpose of enabling the accused to explain any circumstance appearing in evidence against him.
The second part comes into play after the witnesses for the prosecution have been examined and before the accused is called on for his defence. In the case in hand, the learned Special Judge without examination of the accused, called on the accused for his defence. He clearly violated the mandatory provisions of section 342, Cr. P. C. An accused is not bound to summon his witnesses until he himself is examined. It was held in Kazi Feroze and others v. Emperor (1) that where the accused is asked to summon his witnesses and to produce them before all prosecution witnesses had been examined, it was an irregular procedure which vitiated the whole proceedings. It was held in Muhammad Ismail v. The State (2) that the statutory right of the accused under section 256, Cr. P. C.. To he called upon to enter on his defense, could not be abridged or curtailed in any manner and he could not be deprived of the said right which he had by law and disobedience of any express provision of law as to the mode of trial was not a mere irregularity but an illegality which vitiated the trial and was not curable under section 357, Cr. P. C. The learned Special Judge did not keep in mind the mandatory provisions of section 342, Cr. P. C. And he called upon the appellant for his defence before his statement under section 342, Cr. P. C. Had been recorded. Thus the trial had vitiated.
4. Now the next question for determination is as to whether the order of retrial would be proper in the circumstances of the case or not. The offence was alleged to have been committed in February, 1961. Nearly fourteen years have passed. It would not be in the fitness of things if retrial is ordered after such a long period. Keeping in view this inordinate delay, I do not deem it proper to order the retrial of this case.
' The appellant is on bail. He is discharged of his bail bond. {{FOOT NOTE}}
(1) AIR 1940 Pat. 295 (2) PLD 1956 Lah. 862 {{FOOT NOTE}}