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Criminal Appeal No.641 of 1984, heard on 24th March, 1985.
‑‑‑S.161‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Criminal Procedure Code (V of 1898), S.342‑‑Illegal gratification‑‑Legal infirmity existing in recording of statement of accused under S.342, Criminal Procedure Code‑‑Trial Court failing to give requisite certificate under his hand that statement of accused was recorded in his presence and hearing and contained full and true account of statement made by him and affixing a stereotype stamp on English as well as vernacular record of his statement‑‑Stamp so fixed, held, could not be treated as a certificate under hand of Magistrate /Judge and it was an illegality and not an irregularity‑‑Conviction and sentence set aside and case remanded for retrial from stage of examination.
‑‑‑S. 342‑‑Where law provides a procedure for doing a thing in particular manner, that thing should be done in prescribed manner and in no other manner or should not be done at all.‑‑[Practice and procedure].
Muhammad Afzal Niazi for Appellant.
Zahid Mahmood for the State.
Date of hearing 24th March, 1985
This criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption Sargodha whereby he on 1‑12‑1984 convicted Fateh Khan appellant under section 181, P.P.C. and sentenced him to 2 years' R.I. and a fine of 119.10,000 in default thereof further S.I. for 10 months.
2. Since after hearing the learned counsel for the appellant I feel inclined to set aside the conviction of the appellant and order retrial on account of legal infirmity in recording the statement of the accused appellant under section 342, Cr. P. C. I need not enter into the merits of the case. I find that the learned trial Court has failed to give requisite certificate under his hand to the effect that the statement of the accused‑appellant was recorded to his presence and hearing and contained full and true account of the statement made by him. No A doubt the learned trial Court has affixed a stereotype stamp on the English as well as vernacular record of the statement of the accused recorded under section 342, Cr. P. C. containing certificate to the effect that the statement of the accused was recorded in his presence and it contained a full and true account of the statement made by him, but, to my mind, the stamp so affixed cannot be treated as a certificate under the hand of the Magistrate /Judge. It is well‑settled that where law provides a procedure for doing a thing in particular manner then that thing should be done in prescribed manner and in no other manner or should not be done at all. The affixation of stamp is thus an illegality and not irregularity. That being the position, there is no option but to set aside the conviction and sentence of the appellant and send back the case to the trial Court for retrial from the stage of the examination of the accused‑appellant under section 342, Cr. P. C. Order accordingly.
M. Y. H. Case remanded.
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