SAEEDUR RAHMAN, J.-The appellant, Ghulam Sakhi (aged, 20 years) 7vas tried by the learned Sessions Judge at Multan for an offence under section 364-A of the Pakistan Penal Code on the charge of kidnapping Muhammad Ashraf alias Bagga, a two-and-a-half years old child. He was convicted and sentenced to death. The appellant has preferred this appeal through Jail against his conviction and sentence and the learned Sessions Judge has also made a reference to this Court under section 374, of the Code of Criminal Procedure for the confirmation of the sentence of death.
This judgment will dispose of both these matters.
2. The case of the prosecution was that on 3rd December 1975, at about 11-10 a. m. The appellant picked up the child from near his house and took him away. When he reached Chauk Shaheedan, which was about two furlongs away from the house of the child he was seen by Khushi Muhammad (P. W. 2). On finding that the child was being carried away by a stranger he raised an alarm, which attracted Muhammad Sadiq (P. W. 1), father of the child, and Sardar Muhammad (P.
W. 3) to the spot. They seized the appellant and took away the child from him. The appellant did not know any other language but Pushto. He was questioned through a Pushto-speaking Pathan who was present in the vicinity. He confessed his guilt before the witnesses and begged for their indulgence. Muhammad Sadiq (P. W. 1) and the other witnesses took him to the Police -Station along with the child. On the way they met S. I. Bashir Ahmad (P.W. 5) who recorded the statement (Exh. P.A.) of Muhammad Sadiq (P. W. 1). On the basis of this statement a formal F. I. R. (Exh. P. A./1), was registered at the said police station. During the investigation it was found that the appellant was of Afghan nationality and had illegally entered Pakistan a few weeks earlier.
3. The appellant pleaded not guilty to the charge and denied the allegations against him. He alleged that he was working as a labourer in a shop under construction; some children including the abductee started picking up bricks from shop; when he stopped them the prosecution witnesses got annoyed and trumped-up a false case against him.
4. At the very outset the learned counsel for the appellant has challenged the legality of the trial proceedings. He contends that the appellant did not know any of the languages in which the trial was con--ducted or the witnesses gave their evidence; in the circumstances as provi--ded by section 361 of the Code of Criminal Procedure, the trial Court ought to have appointed an interpreter for him. As this was not done the proceedings were bad in law. On the other hand the learned counsel who appears for the State submits that there is no material on the record, which may show that the appellant did not follow the proceedings taken at the trial. In support of his submission he refers to an observation of the trial Court in its judgment to the effect that "the accused, however, understood the questions put to him under section 342 of the Code of Criminal Procedure, who might have learnt the language in Jail". In the alternative, the learned counsel argues, the omission on the part of the trial Court to appoint an interpreter for the appellant was an irregu--larity, which was curable under section 537 of the Code of Criminal Procedure.
5. At the trial the appellant was defended by a counsel appointed at State expense. The counsel did not know Pushto. Since the trial Court did not record any definite finding but just assumed that the appellant might have gained some understanding of the language in which the proceedings were conducted we thought it advisable to make an inquiry from counsel who represented him at the trial whether the appel--lant could understand or follow the proceedings. The appellant was also directed to appear before us so that we could ascertain the position for ourselves also. The information received from counsel is to the effect that the appellant could understand only very little of Urdu or Punjabi and that as no interpreter was appointed for him at the trial he could not follow the proceedings. We have also seen and questioned the appellant. We have no doubt left in our mind that the appellant hardly knew any Punjabi or Urdu when his trial was held.
6. Section 361 of the Code of Criminal Procedure reads as follows: - "(1)Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him, (2)If he appears by a pleader and the evidence is given in a language other than the language of the Court and not understood by the pleader, it shall be interpreted to such pleader in that language.
(3)When documents are put in for the purpose of formal proof, is shall be in the discretion of the Court to interpret as much there of as appears necessary."
There is no doubt that subsection (1) was attracted to the present case as the appellant did not understand the languages in which the trial was conducted, but unfortunately the learned Sessions Judge did not care to comply with its provision. The learned counsel for the State half heartedly contended that as at the trial the appellant was represented by1 counsel who fully understood the proceedings it was, unnecessary to appoint an interpreter for him. We cannot accept this position for the reason that the accused has a right to know the nature and contents of the evidence produced against him, for he can hardly defend himself if he does not know what the evidence against him is. Not infrequently the' accused has keener perception of the drift of evidence being led by the' prosecution as compared with his counsel. If he can follow the evidence he may give instructions to his counsel, which may be of great value in cross-examination of the witnesses.
Apart from that, there is also another difficulty in this case. As stated earlier there was even no communication between the appellant and his counsel as his counsel also did not know Pushto.
Consequently, the mere fact that his counsel was not a stranger to the languages in which the proceedings were being conducted was not of any assistance to the appellant. As observed in Ragzan Chhodop v. Emperor (AIR 1948 Lah. 97) the scheme of the Code of Criminal Procedure, in so far as it relates to the trial of cases, is based upon the salutary principle that before a person can be convicted of an offence the evidence against him should be examined in his presence and that he should be given an opportunity to cross-examine the witnesses, to put forward his own version and to produce his own defence. In a case where the accused does not understand the language of the Court and is also unable to communicate with his counsel on account of the same disability the fundamental postulates of a fair trial get seriously violated.
7. Section 537 of the Code of Criminal Procedure states, inter alia that no finding, sentence or order passed by a Court competent juris--diction should be reversed or altered on account of any error, omission or irregularity in proceedings before or during the trial unless such error, omission or irregularity has in fact occasioned a failure of justice. This section is couched in a language of fairly wide import and it is intended to discourage parties in criminal proceedings from making a fetish of technicalities. But, a basic assumption before this section can be invoked is that the error, omission or irregularity should not have occasioned a failure of justice. As noticed earlier in this case the appellant himself was not in a position to understand the proceedings and there was a language barrier between him and his counsel. He was, therefore, unable to instruct his counsel or provide him with material for the purpose of cross-examining the witnesses who were appearing against him. He was G thus a completely dumb spectator at his trial even though he was likely to lose his life as a result thereof. In the circumstances we cannot conceive of a case where failure of justice could have taken place in a more blatant manner.
8. Three authorities were cited at the bar in support of the propo--sition that the non-compliance with the provisions of sections 360 and 361 of the Code of Criminal Procedure was curable under section 537, ibid. They were Abdur Rehman v. King-Emperor (AIR 1937 P C 144), Errapa v. Emperor (AIR 1930 Mad. 186) and Balu v. Crown (PLD 1950 B J 44). In Abdur Rehman-v. King-Emperor the grievance of the accused was that the depositions taken by the Court were not read out to the witnesses in his presence or hearing: it was not his case that he did not understand the proceedings or follow the evidence as it was being recorded. In Errapa v. Emperor it was observed that the omission to comply with the provisions of section 361, subsection (1), was curable under section 537 provided that there was no failure of justice. In the case before us we have found as fact that there was failure of justice. In Balu v. Crown there was no allegations that the accused did not follow the proceedings; on the other hand it was the Court that did not comprehend the language of the accused. It will thus be noticed that none of the authorities cited above has any relevancy to the facts before us.
9. For the reasons stated above we set aside the conviction and sentence of the appellant direct that he shall be retried on the same charge after the provisions of section 361, subsection (1) of the Code of Criminal Procedure have been complied with.