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Criminal Revision No.697 of 1984, heard on 24th March, 1985.
‑‑‑Ss. 342 & 364‑‑Magistrate failing to give requisite certificate under S.364, Cr. P. C. to the effect that statement of accused was recorded in his presence and hearing and that record contained a full and true account of statement made by him‑‑Omission, held, not a curable irregularity but an illegality‑‑Conviction and sentence set aside and case remanded to trial Court for retrial from stage of examination of accused in accordance with law.
Munir Ahmad Bhatti for Petitioner.
S. Zulfiqar Haider for the State.
Date of hearing: 24th March, 1985.
The facts giving rise to this revision are that Munshi petitioner was tried under section 354, P.P.C. by Magistrate Ist Class, Narowal on the allegation that he launched assault on Mst. Rani to outrage her modesty. On the conclusion of the trial he was convicted under section 354, P.P.C. and sentenced to one year's R.I. and a fine of Rs.500 in default thereof to further S.I. for three months. The appeal filed by him failed on 18‑10‑1984, hence this revision.
2. The learned counsel for the petitioner while pointing out legal infirmity in recording statement of the petitioner/ accused under section 342/364 Cr. P. C. submitted that the learned trial Court has failed to give requisite certificate under section 364, Cr. P. C. and as such the conviction of the petitioner cannot be sustained. The learned counsel for the State has not been able to controvert him.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner inasmuch as I find that the learned Magistrate has failed to give requisite certificate under section 364, Cr. P. C. to the effect that the statement of the accused /petitioner was recorded in his presence and hearing and that the record contained a full and true account of the statement made by him. The omission to my mind is not curable irregularity but is an illegality. That being the position, there is no option but to accept the revision, set aside the conviction and sentence of the petitioner and send back the case to the trial Court for retrial from the stage of the examination of the petitioner/ accused in accordance with law. Order accordingly.
M.Y.H. Order accordingly.
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