18/03/2026
A plain reading of Section 20(2) of theFamily Court Act 1964 indicates that the Family Court, while trying offences under the Ordinance, has to adopt the procedure of Chapter XXII Cr.P.C. relating to summary trials. Section 262 of Cr.P.C. (contained in Chapter XXII) contemplates that in trials under this Chapter the procedure prescribed in Chapter XX shall be followed except as hereinafter mentioned. Section 263 Cr.P.C. dispenses with the recording of evidence and the drawing up of a formal charge, in cases where there is no appeal. There can be no cavil that failure to record the statement under Section 342 Cr.P.C. is a serious omission. The underlying rationale is anchored in the principle of audi alteram partem—no person should be condemned unheard. The provision obliges the Court to confront the accused with the material incriminating evidence and afford him a meaningful chance to explain it before the Court draws adverse conclusions. Consequently, the safeguards that are inherent in magisterial trials—including compliance with Section 342 Cr.P.C.—retain their mandatory character even in summary proceedings.
Sub-section (1) of Section 342 CrPC is structured in two distinct parts. The first part confers a discretionary power upon the Court to put questions to the accused at any stage of the inquiry or trial for the purpose of clarifying any circumstance appearing in the evidence against him. The second part, however, imposes a mandatory duty upon the Court that after the prosecution witnesses have been examined and before the accused is called upon to enter upon his defence, the Court shall question him generally on the case so as to afford him an opportunity to explain the incriminating circumstances emerging from the prosecution evidence. The real object of this provision is not to subject the accused to a process resembling cross examination by the Court. Rather, its purpose is to draw the attention of the accused to those points in the prosecution evidence which may weigh with the Court in forming an opinion adverse to him, so that he may offer such explanation as he considers appropriate before any adverse inference is drawn. It is for this reason that the law obliges the Court to put to the accused every material incriminating circumstance appearing in the evidence. The examination of the accused under Section 342 Cr.P.C. has, therefore, been described by the courts as a mechanism intended to establish a meaningful dialogue between the Court and the accused whereby the latter is afforded a fair opportunity to respond to the prosecution case before the Court proceeds to determine his guilt or innocence. It is equally important to distinguish the statement of the accused under Section 342 Cr.P.C. from the option available to him under Section 340(2) Cr.P.C. The statement recorded under Section 342 Cr.P.C. is not made on oath and the accused is not subjected to cross-examination thereon. Its purpose is purely explanatory in nature. After such statement is recorded, it remains open to the accused, if he so chooses, to appear as a witness in his own defence under Section 340(2) Cr.P.C. In that eventuality, he enters the witness box on oath and becomes liable to cross examination like any other witness. The distinction between the two provisions underscores that the examination under Section 342 Cr.P.C. is intended primarily as a procedural safeguard to ensure fairness of the trial rather than as a means of extracting testimonial evidence from the accused.
It is equally well-settled that an incriminating circumstance not put to an accused in his statement under Section 342 Cr.P.C. cannot ordinarily be used against him for conviction2. Once the object and mandatory character of Section 342 Cr.P.C. is understood in the above context, the question that naturally arises is not merely whether the omission vitiate the conviction, which it ordinarily does, but what should be the legally appropriate appellate response to such omission.
Where a conviction is recorded without compliance with the mandatory requirement of examining the accused under Section 342 Cr.P.C., the appellate Court is unquestionably duty-bound to interfere because the conviction resting upon a procedurally defective process cannot be sustained as it stands. The petitioner proceeds on the assumption that the defect inevitably culminates in acquittal. The law does not support such an inflexible proposition. The omission undoubtedly vitiates the conviction as recorded but the remedial course, whether acquittal or remand, must be determined in light of the statutory framework of the Code of Criminal Procedure and the overall demands of justice in the circumstances of the case. However, it is settled that the appellate Court is vested with a discretionary jurisdiction under Section 423 Cr.P.C. to determine the appropriate remedial course in light of the overall interests of justice. The law does not mandate acquittal as an inevitable consequence of procedural omission, rather the Court must weigh whether the accused suffered prejudice and whether the proceedings can be restored to a lawful stage without compromising fairness. This principle ensures that procedural safeguards are enforced while maintaining the integrity of judicial process, consistent with the maxim actus curiae neminem gravabit.
The powers of an appellate Court while dealing with an appeal from conviction are delineated in Section 423 Cr.P.C., which expressly authorizes the Court to reverse the finding and sentence and either acquit or discharge the accused, or order him to be tried by a Court of competent jurisdiction subordinate to it.
The language of the provision, particularly the expression “order him to be retried”, used in subsection (1)(b)(1) clearly demonstrates that the appellate jurisdiction is not confined to a rigid binary between maintaining conviction and acquitting the accused. Rather, the statute expressly contemplates situations where the interests of justice require that the proceedings be restored to a lawful stage so that the trial may proceed in accordance with law.
It is also important to observe that the concept of retrial or remand contemplated under Section 423 Cr.P.C. is not confined to directing a trial de novo in every case. Depending upon the nature of the illegality or irregularity identified, the appellate Court may direct that the proceedings recommence from the stage where the defect occurred so that the irregularity is cured without undoing the valid part of the proceedings already undertaken. Thus, where the defect lies in the omission to examine the accused under Section 342 Cr.P.C., the appellate Court may lawfully set aside the conviction and restore the case to the stage where compliance with that provision becomes mandatory, i.e., the stage immediately following the conclusion of prosecution evidence.
Another principle of interpretation relevant to the present controversy is that redundancy cannot be attributed to the Legislature. Every word employed in a statutory provision is presumed to have been used deliberately and must be given meaningful effect4. If the petitioner’s contention were accepted—that every instance of noncompliance with Section 342 Cr.P.C. necessarily results in acquittal— the express power conferred upon the appellate Court under Section 423 Cr.P.C. to “order him to be tried” would effectively be rendered otiose. Such an interpretation would be inconsistent with the settled canon that statutory provisions must be read harmoniously so as to give effect to all parts of the legislative scheme.
There is yet another well-established principle which bears directly upon the present controversy, namely the maxim actus curiae neminem gravabit i.e., an act of the Court shall prejudice none.
W.P. 7946/26
Noor Ahmad Vs The State etc.
Mr. Justice Raheel Kamran
16-03-2026
2026 LHC 1630
