Full Judgment Text & Judicial Ruling

1988 M L D 155

1988 M L D 155

[Lahore]

Before Afrasiab Khan, J

MIAN MUHAMMAD--Petitioner

versus

THE STATE--Respondent

Criminal Revision No. 368 of 1987, decided on 6th February, 1988.

Criminal Procedure Code (V of 1898)--

---S. 340(2)--Statement of accused under S. 340(2), Cr.P.C. on oath not recorded although accused volunteered to make such a statement--Conviction and sentence set aside and case remanded to Trial Court for proceeding in case from stage of recording statement of accused.

Faqir Husain v. The State P L D 1985 Lah. 434; Muhammad Qasim v. The State P L D 1986 Quetta 286 and Rizwan v. The State P L D 1986 Lah. 222 ref.

Riasat Ali for Petitioner.

S.M. Zubair, A.A.-G. with Rao Khalil for the Stale.

Date of hearing: 6th February, 1988.

JUDGMENT

The petitioner Mian Muhammad has moved this criminal revision praying therein that the conviction and sentence awarded to him may be set aside. He was convicted under section 307/34, P.P.C. by Mr. Munir Mubarak Khan section 30 Magistrate, Jauharabad, vide his judgment dated 4-2-1987 whereby he was sentenced to four years, R.I. plus a fine of Rs.10,000 and in default thereof to further suffer six months' R.I. The petitioner went in appeal which was heard and dismissed by the learned Sessions Judge Khushab vide his judgment dated 12-8 1987.

2. Without touching the merits of the case, learned counsel for the petitioner contended that the statement of the present petitioner under section 340(2), Cr.P.C. on oath was not recorded and as such, the case of the petitioner has been materially prejudiced. Learned counsel contended that the petitioner did make a statement that he will appear as a witness and will make a statement in Court. In support of his contention learned counsel for the petitioner has placed reliance on Faqir Husain v. The State P L D 1985 Lah. 434, Muhammad Qasim v. The State P L D 1986 Quetta 286 and Rizwan v. The State P L D 1986 Lah. 222. Mr. S.M. Zubair, learned Additional Advocate-General and Rao Khalil, Advocate on behalf of the State have appeared. Learned Additional Advocate- General has made a categorical statement that the statement on oath of the petitioner was not recorded by the learned trial Court under section 340(2), Cr.P.C. and as such, the trial stands vitiated. He states that he has no object ion if the revision is allowed, the conviction and sentence a: set aside and the case is remanded to the learned trial Court with a direction to proceed in the matter from the stage of recording the statement of the petitioner and thereafter to decide the case in accordance with law. Learned counsel for the petitioner contended that some time may be fixed for the conclusion of the trial.

3. Respectfully following the rule laid down in the above referred authorities, the petition is allowed and the conviction and sentence of the petitioner are set aside. The case is sent back to the learned trial Court with a direction that he will proceed in the case from the stage of recording the statement of the petitioner and thereafter conclude the matter within three months time. S.G.D./M-603/L

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