Missing section 342 statement: remand, not automatic acquittal

Facts

From the judgment

The petitioner and respondent No. 2 were married under Muslim rites and have two children. While the marriage subsisted, the petitioner contracted a second marriage on 31 March 2023. His wife filed a complaint under section 6(5) of the Muslim Family Laws Ordinance 1961 before the Family Court, Lahore. (para 2)

The Family Court, acting as a Judicial Magistrate under section 20 of the Family Courts Act 1964, convicted the petitioner on 9 September 2025. It is not disputed that the court never recorded his statement under section 342 Cr.P.C. (paras 1-2, 20)

On the petitioner's appeal, the Additional District Judge, Lahore set the conviction aside on 27 January 2026 and remanded the case to record his section 342 statement and proceed according to law. The wife's appeal for a higher sentence was treated as a criminal revision and dismissed as infructuous. The petitioner then filed this writ petition, arguing that he should have been acquitted. (paras 1-2)

Procedural history

From the judgment

1. 9 September 2025Complaint under s.6(5) MFLO (second marriage), Family Court, Lahore (as Judicial Magistrate)Convicted; s.342 statement never recorded (para 1-2)
2. 27 January 2026Petitioner's appeal against conviction, Additional District Judge, LahoreAllowed; conviction set aside; remanded to record the s.342 statement (para 1)
3. 27 January 2026Complainant's appeal for enhancement (treated as a revision), Additional District Judge, LahoreDismissed as infructuous (para 1)
4. Date not statedWrit Petition No. 7946 of 2026, Lahore High Court, LahoreDismissed (heard on 18 February 2026) (para 22)

Questions of law

1. Where the accused was admittedly never examined under section 342 Cr.P.C., was the appellate court bound to acquit him, or could it remand the case to record his statement and cure the defect? Framed by the court

   The court's answer: It could remand. The omission vitiates the conviction as recorded, but section 423 Cr.P.C. gives the appellate court a discretion to choose the remedy, including a retrial from the stage of the defect. (para 7, 13, 22)

Arguments

From the judgment

Petitioner or appellant

Not recording the section 342 statement is not a curable technical irregularity; it goes to the root of the trial, so the proper appellate result was acquittal, not remand (para 3). In rebuttal, counsel accepted that the petitioner had not given evidence under section 340(2), although he appeared as RW-1 (para 6).

Respondent

The appellate court took a lawful and balanced course by directing the trial court to remedy the omission, without repeating the whole process (para 4). The amicus curiae added that the appellate court must assess prejudice and may acquit or remand; the power to remand comes from section 423 Cr.P.C.; and a retrial need not be a trial de novo (para 5).

Court's reasoning

From the judgment

Family Court trials: summary, but section 342 still applies

Under section 20 of the Family Courts Act 1964 a Family Court tries offences under the Ordinance as a Judicial Magistrate, using the summary-trial procedure of Chapter XXII Cr.P.C. Failure to record the section 342 statement is still a serious omission: the safeguard rests on the principle that no one should be condemned unheard, and it keeps its mandatory character in summary proceedings. (para 9-10)

What section 342 requires

Section 342(1) has a discretionary part (questions at any stage) and a mandatory part: after the prosecution witnesses and before the defence, the court must question the accused generally on the case, putting every material incriminating circumstance to him. The statement is not on oath and differs from giving evidence as a witness under section 340(2). A circumstance not put to the accused cannot ordinarily be used to convict him. (para 11-12)

The conviction falls, but acquittal is not automatic

An appellate court must interfere with a conviction recorded without the section 342 examination. But the law does not make acquittal the inevitable result: under section 423 Cr.P.C. the court weighs whether the accused suffered prejudice and whether the proceedings can be restored to a lawful stage without compromising fairness. The Supreme Court in S.A.K. Rehmani v. The State (2005 SCMR 364) treated such errors as curable irregularities. (para 13-14)

Remand to the stage of the defect

Section 423(1)(b) expressly allows the appellate court to order the accused to be retried. A retrial need not start afresh: the court may restore the case to the stage immediately after the prosecution evidence, where the section 342 examination is due. The court relied on Supreme Court and Lahore High Court decisions that remanded in this way. (para 15-17)

Reading section 423 as a whole; the court's own mistake

If every failure to comply with section 342 meant acquittal, the power to order a retrial in section 423 would be redundant. And because the omission was the court's own, the maxim that an act of the court shall prejudice no one calls for restoring the proceedings to the lawful stage, so that neither side suffers. (para 18-19)

Applied to this case

Here no section 342 statement was recorded at all. If remand is right where a statement was recorded but was deficient, it is all the more permissible where the statement was omitted entirely. The remand protects the petitioner's right to explain the evidence while preserving the complainant's right to a decision on the merits. The cases the petitioner relied on did not establish that acquittal must always follow. (para 20-21)

Judicial observations

From the judgment

The court's exact words.

Practical implications

Our analysis

For lawyers

• In a Family Court trial of an MFLO offence, check that the accused was examined under section 342 after the prosecution evidence and that every incriminating circumstance was put to him; its absence vitiates the conviction.
• On appeal, do not assume that the omission leads to acquittal. Address the remedy directly: prejudice, whether the case can be restored to a lawful stage, and any other defect that a remand could not cure.
• A remand for the section 342 examination restarts the case from the close of the prosecution evidence, not from the beginning.

For everyone else

• A wife's complaint about her husband's second marriage under section 6(5) of the Muslim Family Laws Ordinance is tried as a criminal case by the Family Court.
• Before convicting, the court must give the accused a chance to explain the evidence against him. If it does not, the conviction cannot stand.
• But a mistake by the court does not automatically end the case in the accused's favour; the case can be sent back to correct the mistake and be decided again.

General points drawn from this judgment, not advice on your own case.

Limits of this judgment

Our analysis

• A judgment of a single judge of the Lahore High Court, marked as approved for reporting.
• It decides the remedy for a missing section 342 statement. It does not decide whether the petitioner committed the offence under section 6(5); that remains for the Family Court after the remand.
• The court left the choice between acquittal and remand to the circumstances of each case; acquittal may still follow where there is prejudice or another defect.

Related

Our guide

• A List of Family Laws in Pakistan