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Criminal Appeal No. 551 of 1985, decided on 17th November, 1985.
‑‑‑--S. 409‑‑Criminal Procedure Code (V of 1898), S.364‑‑Illegality in recording statement of accused‑‑Non‑compliance of mandatory provisions of law‑‑Provisions of S.364, Criminal Procedure Code, not complied with by Trial Court‑‑Required certificate under hand of Court not given‑‑When law requires a particular thing to be done in a particular manner, held, it should be done in that manner or not at all‑‑Conviction and sentence was set aside in circumstances and re‑trial was ordered.
Rana Abdul Hamid Khan for Appellant.
Sh. Muhammad Nawaz for the State.
Date of hearing: 17th November, 1985.
This criminal appeal arises from the judgment of the learned Special Judge Anti‑Corruption, Gujranwala at Lahore whereby he on 7‑9‑1985 convicted Sabir Raza Nadeem appellant under section 409, P.P.C. and sentenced him to three months' R.I. and a fine of Rs.5.000 in default thereof one year R.I.
2. Since after hearing the learned counsel for the parties, I feel inclined to set aside conviction and sentence on account of illegality in recording the statement of the accused appellant, therefore, I need not set out the facts in detail and enter into the merits of the case. I find that the learned trial Court has not complied with the mandatory provisions of section 364, Cr.P.C. inasmuch as the learned trial Judge has not given certificate in his own hand that the examination of the accused appellant was taken in his presence and hearing and that the record contained a full and true account of the statement made by him. No doubt the statement bears stamp to this effect but stamp does not tantamount to a certificate under the hand of the Court. It is well established that when the law requires particular thing to be done in a particular manner, it should be done in that way or not at all. Since the trial Court has failed to comply with the mandatory provisions of section 364, Cr. P.C., there is no option but to set aside the conviction and sentence and send back the case to the trial Court for retrial from the stage of recording statement of the accused under section 342/364, Cr.P.C.
S.A Retrial ordered
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