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Criminal Revision No. 723 of 1984, heard on 3rd March, 1986.

‑‑‑Ss. 364, 435/439, 533, 561‑A & 342‑‑Penal Code (XLV of 1860), S.353/358/506/34‑‑Mandatory provisions‑‑Non‑compliance of‑‑Statements of accused recorded under S.342, Cr.P.C. not bearing certificate of Magistrate‑‑Mandatory provisions of S.364, Cr.P.C. not complied with‑ Non‑compliance of mandatory provisions, held, was an illegality not curable under 5.533, Cr.P.C.‑‑Conviction and sentence were set aside and case remanded for retrial.

Munir Ahmad Bhatti for Petitioners.

Sh. Ehsan Ahmad for the State.

R.A. Awan for the Complainant.

Dates of hearing: 2nd and 3rd March, 1986.

The facts giving rise to this revision petition briefly are that a case under section 506/358/31f, P.P.C. was registered at Police Station Ichhra, Lahore against Allah Ditta and three others, accused /petitioners. After the investigation, the challan was submitted in the Court of Magistrate First Class, Lahore who, vide his order, dated 20‑1‑1981 convicted the accused/ petitioners under section 353/34, P.P.C. and sentenced them to nine months R.I. and a fine of Rs.200 or in default thereof, two month's R.I. The appeal filed by the accused /petitioners against the judgment of their conviction was dismissed by the Additional Sessions Judge, Lahore on 8‑12‑1984, hence this petition.

2. Since at the very outset, the learned counsel pointed out that the learned Magistrate had not complied with the mandatory provisions of section 364, Cr.P.C. and had failed to give requisite certificate on the statements of the accused /petitioners, recorded under section 342, Cr.P.C., so I need not set out the facts in detail and enter into the merits of the case. The learned counsel for the complainant has vehemently opposed the contention of the learned counsel for the petitioners. He maintained that the failure on the part of the Magistrate to give requisite certificate does not affect the trial under section 533, Cr.P.C. The learned counsel for the State has supported him.

3. I have considered the submissions made by the learned counsel for the parties on this legal point carefully. I have not been able to persuade myself to agree with the learned counsel for the complainant. On examination of the statements of the accused /petitioners recorded under section 342, Cr.P.C., I find that the learned Magistrate has not complied with the mandatory requirement of section 364, Cr.P.C., inasmuch as he has not given certificate in his own hand that the examination of the accused /petitioners was taken in his presence and hearing and that the record contained a full and true account of statement made by them. The non‑compliance to my mind is illegality and not a curable irregularity under section 533, Cr.P.C. The relevant section may be reproduced advantageously:‑--

Section 533, Cr.P.C.

"(1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such section have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and notwithstanding anything contained in the Evidence Act, 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.

(2) The provisions of this section apply to Courts of appeal, reference and revision."

From the bare reading of section 533, Cr.P.C. it is very much obvious that such statement cannot be admitted in evidence unless .the Court finding non‑compliance of provisions of section 364, Cr.P.C., takes evidence that accused duly made the statement recorded. The wisdom behind the statutory requirement of the certificate in the hand of the Magistrate seems to be that the Magistrate shall himself attend to the statement made by the accused/ petitioner and should not leave it to his Reader or Clerks. Furthermore, it is well‑settled that when law requires a particular thing to be done in a particular way that should be done in that particular way or not at all whereas in the case in hand instead of giving the requisite certificate the trial Court in the end of the statement stated:

which to my mind does not tantamount to a certificate required under section 364, Cr.P.C.

4. For what has been said above, the conviction and sentence of the petitioners under section 353/34, P.P.C. is set aside and the case is remanded back to the trial Court for retrial from the stage of the examination of the accused /petitioners under section 342/364, Cr.P.C. in accordance with law.

S. A. Case remanded.

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