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Criminal Revision No. 582 of 1985, decided on 11th December, 1985.

----S. 340(2) [as amended by Code of Criminal Procedure (Amend ment) Ordinance (XII of i985)1‑.accused persons examined under S. 342. Cr. P. C. on 30‑10‑198.1 when they agreed to produce evidence in defence on 5‑11‑1984 which they did, but failed to give their evidence in defence ‑Judgment in case delivered on 5‑1‑1985‑Amend ment to S. 340(2). Cr. P. C. was not gazetted till 21‑2‑1985 Amended provisions of S. 340, Cr. P. C., held, could not be applied to case by trial Magistrate in circumstances.

---- S. 342(1)‑Magistrate, for purpose of enabling accused to explain circumstances appearing in evidence against him, way called upon to question accused generally on case after witnesses for prosecution had been examined and before accused himself was called on for his defence‑Every error or omission amounting to non‑compliance with provisions of S. 342(1), Cr. P. C. to the extent that it related to examination of accused after prosecution bad closed its case, held, would not be treated as vitiating trial‑Upon degree of error or omission and upon question whether prejudice had been or was likely to have been caused to accused depended the fact whether trial stood vitiated.

Sonafar Ali v. The State 1969 S C M R 461 ; Abdul Wahab v. Crown P L D 1955 F C 88 and Muhammad Yaqub v. The Crown P L D 1956 F C 143 mentioned.

‑‑‑ Ss. 342, 164, 364, 533 & 537‑Scope and application‑Object of S. 533, Cr. P. C. elaborated‑Certificate given by Magistrate under S. 342, Cr. P. C. lends certainty to his action that examination has been taken in his presence and hearing and that record contains a full and true account of statement made. to him‑Omission to record certificate is curable under S. 533, Cr. P. C.‑Bare allegation that Magistrate did not comply with provisions of S. 342, Cr. P. C., in absence of any specific assertion identifying violation, the omission to record certificate which appeared to be result of sheer careless ness, held, was curable without resort to S. .:33, Cr. P. C.

A certificate given by the Magistrate under section 342, Cr. P. C. lends certainty to his action that the examination has been taken in his presence and hearing and that the record contains a full and true account of the statement made to him. An omission to record the certificate is curable under section 533, Cr. P. C. This does not mean that the recording of the certificate is a mere formality. Rather; the object of the section is to secure compulsory enforcement of section 342, Cr. P. C., the mandate wherein is specially designed to safeguard the interest of the accused to ensure his explanations coming on the record in respect of all items of evidence appearing against him in the case. But before section 533, Cr. P. C. can be applied, the accused must place material before the appellate or revisional Court, duly supported by his affidavit, to show the relevant provision of section 164 or section 364 of the Code which has been specifically violated and what prejudice has been or is likely to have been caused to him. The accused must speci fically plead how and in what manner the particular provision of section 164 or section 342, Cr. P. C. has been violated. In the instant case, at the foot of the statements of the petitioners recorded under section 342, Cr. P. C. appears the certificates of the Magistrate to the effort that the statements were read over to the petitioners and accepted by them as correct. This obviously shows, in the absence of any affidavit to the contrary, that the statements were recorded in his presence and hearing and that the same had been heard and admitted by the petitioners to be correct. The petitioners neither in their appeal before the Sessions nor in their revision petition before High Court have urged that the examination under section 342, Cr. P. C. was not taken in their presence and hearing by the Magistrate or that the record does not contain a full and true account of the statements made by them. The only bare allegation in the revision petition is that the Magistrate did not comply with the provisions of section 342, Cr. P. C. This bare statement is not enough, as it does not show the specific violation. In the absence of any specific assertion identifying the violation, the omission in the present case to record the certificate, which appears to be the result of sheer carelessness, is curable, without resort to section 533, Cr. P. C.

Hazrat Jamal v. The State P L D 1958 S C (Pak.) 383 mentioned.

‑‑ Ss. 533, 537, 364, 164 & 342‑Object, scope and application of S. 533, Cr. P. C.‑Omission of Magistrate to record certificate as required by S. 364, Cr. P. C. where no prejudice had caused to accused, being nothing but a mere procedural omission, held, was curable under Ss. 533 & 537, Cr. P. C. Section 533, Cr. P. C. is intended to secure proper compliance of the provisions of sections 164 and 364 of the Code by calling the Magistrate to find out whether the accused did duly make the statement, as recorded. The object is not to call the Magistrate to merely secure his certificate. Where, there is no allegation, supported by an affidavit, that the statement of an accused under section 342, Cr. P. C. has not been recorded in the presence and hearing of the Magistrate or that the statement is not a full and true account of what the accused has stated, the omission of the Magistrate to record the certificate, as required by section 364, Cr. P. C., is nothing but a mere procedural omission. Under section 537, Cr. P. C., no finding, sentence or order passed by a Court of competent jurisdiction can be reversed or altered on account of any omission in the proceedings during trial, unless such error or omission has, in fact, occasioned a failure of justice. Since no prejudice has been alleged, the omission to record the certificate is also curable under section 561‑A, Cr. P. C.

---S. 533‑Certificate as required by S. 364, Cr. P.. C.‑Rubber stamp‑Whenever statement had been properly recorded assumption' would be that recording of certificate through a rubber stamp would not be improper‑Fact that certificate was recorded by use of rubber stamp would not ipso facto imply that Magistrate had acted mechanically‑Such certificate if so recorded in handwriting of Magistrate would be ipso facto proof of his having applied his mind to matter‑Held, it was not proper to blindly condemn recording of certificate through rubber stamp without examining various matters.

Qazi Abdul Hayee for Petitioners.

Nemo for the State.

Date of hearing : 3rd November, 1985.,

This is a revision petition filed by Muhammad Hussain and two others, petitioners Nos. 1 to 3, against the judgment of an Additional Sessions Judge of Kasur, dated 22‑10‑1985, dismissing their appeal, but accepting that of their co‑accused Bashir Ahmad. Earlier, a First Class Magistrate of Chunian, by his judgment dated 5‑1‑1985, had convicted the petitioners and their co‑accused under section 365/452, P. P. C. and sentenced them to six months' rigorous imprisonment each with a fine of rupee‑s five hundred (Rs. 500) each or in default thereof to suffer further rigorous imprisonment for three months each on each of the two charges ; the sentences being ordered to run concurrently.

2. The facts of the case need not be set out, as this petition was admitted to only consider two legal issues, on which arguments have been addressed.

3. On behalf of the petitioners it is submitted that the evidence of the accused was not recorded under section 340(2), Cr. P. C. and this has vitiated the trial. In this connection learned counsel has relied on Faqir Hussain's case (P L D 1985 Lah. 434). It is further submitted that the statements of the petitioners recorded under section 342, Cr. P. C. were not certified, as. required by section 364, Cr. P. C: and that, therefore, the conviction should be set aside. In this connection, learned counsel has relied on Munshi Khan's case (1985 P Cr. L J 1677), and Fateh Khan's case (1985 P Cr. L J 1683).

4. As regards the first submission regarding the failure of the Court to record the evidence of the accused/petitioners under section 340(2), Cr. P. C., it may be submitted that the petitioners were examined under section 342, Cr. P. C. on 30‑10‑1984 when they agreed to produce evidence in defence, which they did on 5‑11‑1984, but did not care to give their own evidence in defence, whereafter judgment was delivered on 5‑1‑1985. A The Code of Criminal Procedure (Amendment) Ordinance, XII of 19,X5, which substituted the new subsection (2) to section 340 of the Code was not gazetted till 21‑2‑1985. In these circumstances, this new provision could not be applied to the instant case by the trial Magistrate. This submission, therefore, has no meri4 and is rejected.

5. With regard to the second submission that no certificate, as required by section 364(2), Cr. P. C., was recorded by the Magistrate after recording the statements of the petitioners under section 342, Cr. P. C.,' the same appears to be factually correct. The only question is whether, on this basis, it can straightaway be inferred that the trial stands vitiated. Learned counsel has referred to Munsh's case (supra) and Fateh Khan's case (supra) to canvass the view that where the law provides a particular procedure for doing a particular thing in a particular manner, that thing should be done compulsorily in the prescribed manner and not in any other manner. It is urged that since section 364(2), Cr. P. C. mandatorily directed the Magistrate to certify under his own hand that the examination was taken in his presence and hearing and that the record contained a full and true account of the statement made by the accused and that since the mandatory procedure was not complied with, an illegality has occurred which has vitiated the trial.

6. Of these sections which invite the application of a particular procedure for the doing of at particular thing, sections 342 and 364, Cr. P. C. may be cited as two examples, where a mandatory compliance is required. Section 342(I), Cr. P. C. inter alia mandatory calls upon Magistrate for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him, to question him general can the case after the witnesses for the prosecution have been examine and before he is called on for his defence. Every error or omission amounting to non‑compliance with the provisions of section 342(1), Cr.P.C. B to the extent that it relates to the examination of the accused after the prosecution has closed its case, is not treated as vitiating the trial Upon the degree of the error or omission and upon the question whether prejudice has been or is likely to have been caused to the accused, depend the fact whether the trial stands vitiated. If any authority is required for this view, Sonafar Ali v. The State (1969SCMR461). Abdul Wahab v., The Crown (PLD1955FC88) and Muhammad Yaqub v. The Crown (P L D 1956 F C 143), may be referred.

7. In respect of the violation of section 364, Cr. P. C., the same question arises, namely, as to what is the degree of the omission and whether prejudice has been or is likely to have been caused to the accused. A certificate given by the Magistrate under section 342, Cr. P. C. lends certainty to his action that the examination has been taken in his presence and hearing and that tile record contains a full and true account of the G statement made to him. An omission to record the certificate is curable under section 533, Cr. P. C. This does not mean that the recording of

the certificate is a mere formality. Rather, the object of the section is to secure compulsory enforcement of section 342, Cr. P. C., the mandate wherein is specially designed to safeguard the interest of the accused to ensure; his explanations coming on the record in respect of all items of evidence appearing against him in the case. But before section 533, Cr. P. C. can be applied, the accused must place material before the appellate or revisional Court, duly supported by his affidavit, to show the relevant provision of section 164 or section 364 of the Code which has been specifically violated and what prejudice has been or is likely to have been caused to him. The accused must specifically plead how and in what manner the particular provision of section 164 or section 342, Cr. P. C. has been violated. In the instant case, at the foot of the state ments of the petitioners recorded under section 342, Cr. P. C. appears the certificate of the Magistrate to the effect that the statements were read over to the petitioners and accepted by them as correct. This obviously shows, in the absence of any affidavit to the contrary, that the statements were recorded in his presence and hearing and that the same had been heard and admitted by the petitioners to be correct. The present petitioners neither in their appeal before the sessions nor in their present revision petition have urged that the examination under section 342, Cr. P. C. was not taken in their presence and hearing by the Magistrate or that the record does not contain a full and true account of the statements made by them. The only bare allegation in the present revision petition is that the Magistrate did not comply with the provisions of section 342, Cr. P. C. This bare statement is not enough, as it does not show the specific violation. In the absence of any specific assertion identifying the violation, the omission in the present case to record the certificate, which appears to be the result of sheer carelessness, is curable, without resort to section 533, Cr. P. C. If any authority is required for this view, Hazrat Jamal v. The state (P L D 1958 S C 383) may be referred. In Hazrat Jamal s case (supra), the trial Magistrate has omitted to record the certificate under section 342(3), Cr. P. C. In view of the fact that the point was not specifically taken in the petition for special leave to appeal and the omission had not injured the accused as to his defence on merits, the same was held to be curable under section 533 of the Code, without the Magistrate being specifically called under section 533, Cr. P. C. to affirm the fact that the accused had duly made the statement In Sant Ram's case (A I R 1953 H P 105.), the statement of the accused under section 342 of the Code in the Court of the Committing Magistrate did not contain the certificate as required by section 364(2), Cr. P. C. 1n appeal in the High Court it was urged on behalf of the accused that before the Committing Magistrate, the accused, when confronted with his confession, had stated that he had made the same at the instance of the police and that it was incorrect, whereas the same was not so recorded by the Magistrate, who had also failed to certify the statement as required by section 342(2), Cr. P. C., and therefore, the statement was inadmissible in evidence. The High Court held that as no such allegation was made by the accused when he was examined in the Sessions Court under section 342 of the Code and as the said state ment recorded by the Committing Magistrate contained a certificate that the same had been read out to the accused‑and admitted by him to be correct, the defect stood cured under section 533 of the Code and that the statement of the accused recorded by the Committing Magistrate was not inadmissible. Here also the High Court did not examine the Magistrate.

8. This matter can be examined from another angle. As earlier; stated, section 533, Cr. P. C. is intended to secure proper compliance of the provisions of sections 164 and 364 of the Code by calling the Magistrate to find out whether the accused did duly make the statement as recorded. The object is not to call the Magistrate to merely secure his certificate. Where, as in the instant case, there is no allegation, by an affidavit, that the statement of an accused under section 342, Cr. P. C. has not been recorded in the presence and hearing of the Magistrate or that the statement is not a full and true account of what the accused has stated, the omission of the Magistrate to record the certificate, as required by section 364, Cr. P. C., is nothing but a mere procedural omission, Under section 537, Cr. P. C. no finding, sentence or order passed by a Court of competent jurisdiction can be reversed or altered on account of any omission to the proceedings during trial, unless such error or omission has, in fact, occsioned a failure of justice. Since no prejudice has been alleged, the omission to record the certificate is also curable under section 537, Cr. P. C.

9. During the arguments, reference was drawn to the fact that certain Magistrates, when giving their certificates under section 364. Cr. P. C, do so by affixing a rubber stamp containing the wording of the said certificate, which is improper. I would not like to give any particular opinion in this matter as this matter is not before me, but in Sant Ram's case (supra) the Himachal Pradesh High Court did not consider the use of such a rubber stamp as illegal. If the statement has been properly recorded, I would assume that the recording of the certificate through a rubber stamp would not be improper ; but where it is not so recorded, the certificate would undoubtedly be untruthful. The fact that the certificate is recorded by the use of a rubber stamp does not ipso facto imply that the Magistrate has acted mechanically. Nor would such a certificate, if so recorded in the handwriting of the Magistrate, be, ipso facto proof of his having applied his mind to the matter. Without examining various matters it is not proper to blindly condemn the recording of the certificate through rubber stamp.

10. For the foregoing reasons, there is no merit in this petition, which ' is dismissed.

A. A. Petition dismissed

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