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Criminal Appeal No. 459 of 1985, heard on 12th February,198r

‑‑‑S. 161‑‑Criminal Procedure Code (V of 1898) S. 364‑‑Statement of accused under S: 364, Cr. P.C. ‑‑Certificate under hand of trial Court‑ Trial Court instead of giving requisite certificate under its own hand, affixing stamp to the effect that statement of accused was recorded in his presence‑‑Affixing of stamp, held, would not tantamount to giving certificate under hand of trial Court‑‑Trial, therefore, suffered from illegality and mandatory provisions of S. 364, Criminal Procedure Code were violated‑‑Case remanded for fresh decision according to law.

When law required a thing to be done in a particular manner that should be done in that way or not at all.

M.B.Zaman for Appellant.

Arif Sajjad Khan for the State.

Date of hearing: 12th February, 1986.

This criminal appeal arises from the judgment of learned Special Judge (Central), Lahore, whereby he, on 27‑7‑1985 convicted Sanaul‑Haq appellant under section 161, P.P.C. and sentenced him to one year's R.I. and a fine of Rs.3,000 or in default thereof 3 months' R.I.

2. Since after hearing the learned counsel I feel inclined to send back the case to the trial Court for the compliance of the order, dated 27‑12‑1984 of this Court passed in appeal against acquittal of Sane‑ul‑Haq appellant, I need not set out the facts in detail and enter into the merits of the case. I find that the appellant was tried under section A 161, P.P.C. by the learned Special Judge (Central) and acquitted. The State, then, filed appeal. After hearing the parties I found that the trial suffered from illegality, inasmuch as, the mandatory provisions of section 364, Cr.P.C. requiring the trial Court to give certificate under its hand had been violated, so, I remanded the case to the learned Special Judge (Central) for trial in accordance with law. Strangely enough instead of giving requisite certificate under his hand, the learned trial Judge has affixed stamp to the effect that the statement of the accused was recorded in his presence and hearing which, to my mind, is again violation of the provisions of section 364, Cr.P.C. because affixation of stamp does not tantamount to certificate under the hand of the trial judge. It is well‑settled that when law requires a thing to be done in a particular manna that could be done in that way or not at all. That being the position, there is no option but to send back the case to the learned Special Judge (Central) for fresh decision according to law.

M.Y.H. Case remanded.

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