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Criminal Appeal No.325 of 1977, decided on 24th October, 1984.

‑‑‑Ss.342, 364 & 537‑‑Penal Code (XLV of 1860), Ss.307, 148 & 149‑ Statement of accused not recorded by Magistrate in his own hand writing‑‑Certificate required under S. 364, Cr.P.C. not appended after recording statement of accused‑‑Illegality, held, not curable under S.537, Cr.P.C.

‑‑‑S.367‑‑Judgment‑‑Trial Court signing two judgments, one being sort of rough to be signed at time of announcing judgment and the other after getting same retyped‑‑Judgment present on file of case being second one, Which was admittedly signed late in the evening after announcement of first judgment which was already signed‑‑Such judgment, held, not a legal judgment and could not be sustained‑ Procedure adopted by trial Court not warranted by law, resulting in grave miscarriage of justice‑‑Conviction set aside and case remanded for trial afresh after recording statement of accused under 5.342, Cr.P.C. and giving opportunity to accused to recall any prosecution witnesses already examined and to lead defence evidence, if desired.‑ [Judgment].

Riasat Ali for Appellants.

Hafiz Ghulam Basit for the State.

Date of hearing: 24th October, 1984.

This is an appeal by Muhammad Inayat, Muhammad Afzal, Muhammad Ashraf, Abbas, Nazir, Iqbal, Muhammad Khan and Nasar against their convictions under sections 148/307/149, P.P.C. by Mr. Akhtar Ali Monga, Magistrate Section 30, Gujrat, vide order, dated, 7‑4‑1977. They were all sentenced to three years' R.I. under section 148, P.P.C. and to seven years' R.I. plus a fine of Rs.1,000 each or in default two years' R.I. under sections 307/149, P.P.C, Both the sentences were ordered to run consecutively.

The precise charge against them was that they had waylaid Muhammad Nawaz (P.W.4) and had caused about 56 blunt weapon injuries with sticks out of which four injuries were found to be grievous.

The occurrence, in the instant case, took place at Peshiwela on 22‑11‑1974 and the F.I.R. was lodged on the same day at 7.15 p.m. by Khan Muhammad (P.W.1), father of the injured Muhammad Nawaz P.W. 4. He was himself not the eye‑witness. The occurrence was witnessed by Inayat (P.W.2) and Malka (P.W.5),

3. I need not state, facts of this case in detail because the learned counsel for the appellants has raised two preliminary objections to the trial of the case. Firstly, it is contended by him that the eight appellants were examined under section 342, Cr.P.C. after close of the evidence. Their statements do not bear the date when they were examined nor the statements of the accused have the necessary certificate required to be appended by the trial Court under section 364, Cr.P.C. It is argued that the trial was not legal and the statements cannot be considered to be legal statements under section 342, Cr.P.C. which has resulted ' in grave miscarriage of justice. Secondly, it was contended by him that the original judgment written by the learned trial Magistrate is not on the record of this case and, as such, the impugned judgment cannot be considered a legal judgment under section 367, Cr.P.C.

The precise argument of the learned counsel is that the learned trial Magistrate wrote and signed a judgment in the presence of the accused which was later changed and retyped. The original judgment is not on the file of this case. It was, therefore, argued that the convictions, recorded by the trial Court were not based on any legal judgment.

Learned counsel for the State has admitted this factual position.

4. I have considered the above two points. A perusal of the record indicates that the trial Court recorded the statements of the accused under section 342, Cr.P.C. These statements do not appear to have been recorded in the handwriting of the trial Court. These are in Urdu language and there is no English record of these statements. These statements should, therefore, have been recorded by the trial Magistrate in his own hand. The question regarding recovery of crime weapons from three of the accused was also not put to them. These statements bear no date. The certificate required under section 364. Cr. P. C. has also not been appended by the trial Magistrate after recording the statements of the accused. This is, in my opinion, an illegality not curable under section 537, Cr.P.C.

The appellants had made an application for suspension of their sentences and one of the grounds in support of that petition was that they had not been convicted by a legal judgment. Before suspending their sentences, learned Judge recorded the statement of Fida Hussain Qureshi, Stenotypist, working in the Court, who made a statement that he completed the typing of the judgment on the very day when the same was announced, though he had completed the typing at about 7/8 p.m. He further stated that the judgment which is on record is the original judgment and signed by the Magistrate. It was further stated by him that he supplied the copy of judgment to Ahmad Khan, Mukhtar of the appellants, who signed the original judgment in token of the receipt of the said copy. It was admitted by him that the Magistrate had signed the original judgment and its copies after 7/8 p.m. and that he returned to the Court at about 8.30 p.m. thereafter. The learned Judge thereafter called upon Mr. Akhtar Ali Monga to offer comments on the statement of his stenotypist. The comments were furnished by him on 20‑8‑1977.

It was stated by him in his comments that:‑

"So far as I remember I had got one copy of the judgment prepared which was signed by me at the time of its pronouncement in the open Court. My way of working is that the concluding paragraph of the judgment is added and got typed few minutes before the announcement of the decision, rather in the presence of the accused standing in the Court. The judgment which is usually a sort of rough copy is signed in the presence of the accused person and, of course, in the open Court. Due to rush of work the typist was directed to type out the fair and additional copies on the same day even if he had to work till late night. In view of this working, I can submit with all certainty that the judgment was signed by me at the time of its pronouncement in open Court."

From a perusal of these comments, it is clear that there were two judgments signed by the trial Magistrate in the instant case; one was a "sort of rough judgment" which he signed at the time of announcing the judgment and the other judgment was the one which he signed after getting it retyped at about 7 or 8 p.m. on that date. The first "rough sort of judgment" is not on the record of this case. The only judgment on the file of this case is the second judgment which he admittedly signed late in the evening. This was, therefore, clearly an illegal judgment and cannot be sustained. The procedure adopted by the learned trial Magistrate was not warranted by law and has resulted in grave miscarriage of justice. In this view of the matter, the impugned judgment is set aside and the case is remanded back to the learned Sessions Judge, Gujrat, who will entrust the same to a competent Magistrate for trial according to law.

The existing evidence on record will remain intact and the fresh trial will commence considering that the prosecution case has been ended. The trial Magistrate will proceed to record the statements of the accused under section 342, Cr.P.C. according to law and give an opportunity to the accused to recall any prosecution witness already examined in Court. After recording of their statements, the accused may lead any defence evidence if they so desire. The accused‑appellants who are on bail shall appear before the learned Sessions Judge, Gujrat, on 22‑11‑1984.

M. A. K. Case remanded.

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