Through this criminal revision the petitioner have challenged the judgment dated 2.3.2000 passed by learned Additional Sessions Judge, Sahiwal, by which, he has dismissed the appeal of the petitioners and the judgment dated 26.6.1996 passed by learned Magistrate Section 30, Sahiwal, by which, he convicted the petitioners under Section 420 PPC and sentenced. each of them to three years RI With a direction to pay Rs. 1,000/- each or in case of default thereof to further undergo RI for one month each.
2. Brief facts of the case are that case FIR No. 151 of 1982, dated 26.7.1982 was registered at Police Station A-Division, Sahiwal on the direction of District Collector, Sahiwal as on 12.7.1982 Faqir Muhammad moved an application that Muhammad Sharif and Sarwar petitioners residents of Chak No. 140/9-L, Tehsil and District Sahiwal had struck a bargaining with him to purchase 2 acres of agricultural land from him but ultimately they got a document executed and registered whereby his entire holding of 12 1/2 acres was shown to have been purchased. An inquiry was conducted and prima facie it was found that the sale money was not paid in the presence of Sub-Registrar, hence, the SHO was directed to register the case.
3. After the completion of investigation, challan was submitted in the Court, learned trial Court supplied the copies of the statements of the witnesses and other documents and framed the charge against the petitioners, which was denied by them and the prosecution to prove the of the accused/petitioners produced evidence, whereafter the respondents were examined u/S. 342 Cr.P.C. and the learned trial Court after hearing learned counsel for the parties convicted and sentenced the petitioners as stated above through the impugned judgment dated 26.6.1996, The petitioners feeling dissatisfied with the said judgment preferred an appeal, which was also dismissed through judgment dated 2/3/2000 by the learned Addl: Sessions Judge, Sahiwal hence, the present revision petition.
5. Learned counsel for the petitioners contends that while examining u/S. 342 Cr.P.C. no question was put to the petitioners regarding making of statement under Section 340(2) Cr.P.C. and the certificate as required u/S. 364(2) Cr.P.C. was also not appended after the statement of the petitioners under Section 342 Cr.P.C. which is an illegality and is not cureable udder Section 537 Cr.P.C. hence both the judgments are liable to be set aside and the accused may be acquitted.
Relies upon 1985 P.Cr.L.J. 1677, 1986 P.Cr.L.J. 1948 & 1990 P.Cr.L.J. 396. It is also contended that the learned Appellate Court has upheld the judgment of conviction passed by the learned trial Court merely on the basis of decision in civil appeal, in which, the complainant's version was accepted by the said judgment passed in civil appeal has been set aside in Crl. Revision No. 323-D/1991 by this Court Vide judgment dated 17.3.2003 and case has been remanded back to the Senior Civil Judge, Sahiwal for fresh decision. It is further contended that there is no sufficient evidence available on the record to connect the petitioners with the commission of crime and the allegation is totally false. It is lastly contended that both the judgments being based on surmises and conjectures are liable to be set aside by the this Court.
6. On the other hand, learned counsel for the State opposes this revision petition on the ground that the concurrent findings arrived at by both the Courts below are based on cogent evidence and no jurisdictional error has been committed by both the Courts below in passing the impugned judgments, hence, the same are also maintainable. Relies upon Liaqat Ali vs. The State (2002 P.Cr.L.J. 230-Karachi D.B. Judgment) to contend that irregularity as committed in recording statement of the accused u/S. 342 Cr.P.C. is not fatal to vitiate the trial.
7. I have heard the learned counsel for the parties and also perused the record with due care and caution. First of all I intend to meet the objection raised by the learned counsel for the petitioners that non-appending of the certificate as required u/S. 364 (2) Cr.P.C. after the close of statements under Section 342 Cr.P.C. and omission to put the question whether they will make statement under Section 340(2) Cr.P.C. are irregularities on the basis of which judgment of conviction and sentence should be set aside. The learned counsel for the petitioners has relied upon Munshi vs. The State (1985 P.Cr.L.J. 1677), in which, this Court set aside the judgment and remanded back the case to the learned trial Court for retrial from the stage of examination of accused. The same view was adopted in the other case reported as "Sabir Raza Nadeem vs. The State" (1986 P.Cr.L.J. 1948).
However, in Sikandar vs. The State" (1990 P.Cr.L.J. 396), the Karachi High Court also declared it to be an illegality but acquitted the accused on merits.
8.I have perused all these judgments passed by Single Benchs of this Court as well of Karachi High Court, but with due respect I am not in agreement with the same. The presumption of truthness is attached to the judicial proceedings. The statement of the accused u/S. 342 Cr.P.C. is recorded without oath as provided under sub-section (4). Under sub-section (1) to Section 342 Cr.P.C. the purpose of examination of the accused is enabling him to explain any circumstances appearing in the evidence against him and same can be made at any stage without previously warning the accused. The Court can put such questions to him as it considers necessary. Sub-section (2) provides that the accused will not be punished merely because he has refused to give answers to such questions or has given false answers to them, but the Court has the discretion to draw any inferrence therefrom. Under sub-section (3) answers given by the accused may be considered against him in such inquiry/trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. Sub-section
(1) to Section 264 Cr.P.C. given the mode of recording statement of the accused, which is reproduced here for ready reference:-- "Whenever the accused is examined by any Magistrate or by any Court other than a High Court,- the whole of such examination including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers."
Under sub-section (2) of the said section the said statement of the accused has to be signed by the accused and the Court/Magistrate/Judge examining the Same and said officers are required to give certificate under his own hand writing "that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused." Clause (b) to Section 537 Cr.P.C. provides that on account of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless same has infact accasioned a failure of justice no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XVII or on appeal or revision.
9. I have noticed that no such objection was made by the petitioners before the learned trial Court.
I have also perused the memo of appeal filed before the lower Appellate Court as well as revision petition filed before this Court, but not a single word has been averred that how the petitioners were caused any failure of justice by such omission. Even during arguments learned counsel for the petitioners has failed to point out if full version of the petitioners was to recorded in their statement u/S. 342 Cr.P.C. and whether there was any omission or wrong statement not made by the same but has been recorded therein. It has also not even been suggested that if there was any wrong statement and what is the correct version of the accused. I am of the view that without such specific objections taken by the accused before the trial Court and if not taken there, then before the appellate/revisional Court by showing reasons for not taking the same before the trial Court, non-appending of certificate as required u/S. 364(2) Cr.P.C. is merely an irregularity and provisions of Section 537 Cr.P.C. are attracted. Hence on this point alone the finding of sentence cannot be altered or reversed. I am fortified by the dictum laid down by the Division Bench of Karachi High Court in Liaqat Ali vs. State (2002 P.Cr.L.J. 230). The relevant portion is reproduced as under:-- "The Division Bench of this Court sitting at Sukkur has considered the issue in depth and after a detailed survey of the entire case law has held that the absence of signature of the accused on the statement under Section 342 Cr.P.C. and absence of certificate under Section 364(2) Cr.P.C. in the handwriting of the trial Judge is not ipso facto an illegality, thereby vitiating the entire proceedings or making the proceedings from the stage of the recording of the statement of accused onward unsustainable in law, necessitating remand of the case to the trial Court. On the contrary it is only an irregularity and the case is to be remanded back to the trial Court for fresh proceedings from the stage of recording of statement of the accused, if an accused is able to show that the absence of signature of accused on the statement under Section 342 Cr.P.C. or absence of certificate of the trial Judge in his own handwriting had caused any prejudice to the accused causing any injustice.
If no prejudice has been caused to the accused and no miscarriage of justice is shown to have taken place the irregularity is curable and is not fatal to the conviction and sentence."
I am further fortified by the dictum laid down by the Supreme Court of India (PLD 1956 SC (Ind.) 202)
"Moseb Kaka Chowdhry & another us. State of West Bangal" The relevant portions are reproduced as under:- Learned counsel for the appellant has very strenuously argued before us, the point relating to the inadequacy of the examination of the appellants under Section 342 Criminal P.C. Now, it is true that the examination in this case was absolutely perfunctory. The only questions put to each of the accused in the Sessions Courts, and the answers thereto were the following.
You have heard the charges made and the evidence adduced against you. Now say, what is your defence? What have got to say?
A. I am innocent.
Q. Will you say anything more?
A. No. Q. Will you auduce any evidence in defence?
A. No. There can be no doubt that this is very inadequate compliance with the salutary provisions of Section 342, Criminal P.C. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing "Tara Singh v. The State" (1) on .a due and fair compliance with the terms of Section 342, Criminal P.C. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342 Criminal P.C.
"It is settled that clear prejudice must be shown. This Court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. This Court in its judgment in the latest case on this matter viz. K.C. Mathew v.
The State of Travancore Cochin" (2) (delivered on 15th December 1955) has laid down that " if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough."
"Learned Counsel urges, therefore, that the non-examination or inadequate examination under Section 342, Criminal P.C. in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside an retrial ordered, if there is no adequate examination under Section 342, Criminal P.C. We are not prepared to accept this contention as a matter of law. The question of prejudice is ultimately one of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance in an appropriate case. But we see no reason to think that in the present case this would have made any difference."
10. For the foregoing discussion the objection taken by the learned counsel for the petitioners that non-appending of certificate as required under Section 364(2) Cr.P.C. under the statement of the accused made under Section 342 Cr.P.C. is fatal and retrial should be ordered is repelled.
11.Now I come to the second objection that what would be effect of non-putting the question by the Court "Whether accused will make statement u/S. 340(2) Cr.P.C." Undeniably, it is the choice of the accused to make such statement or not. He cannot be compelled to make statement under this provision at any cost. It is not case of petitioners even uptil now that they wanted to make their statements on oath, but same was not recorded by the trial Court. They also did not move any application before the Courts below or before this Court in this regard. They have failed to explain as to what prejudice has been caused to them by not putting such question. Hence, this objection is also over-ruled.
12.However, I am of the view that the learned Addl: Sessions Judge while rejecting appeal of the petitioners against their conviction has mainly relied upon the findings of learned Addl: District Judge, made in judgment Civil appeal pertaining to Civil litigation pending between the parties relating to the same property whereby suit was partly decreed in favour of the complainant to the extent of 84 kanals but has not given independent opinion on the basis of the evidence adduced by both the parties at the trial. As the said judgment regarding civil litigation has been set aside by this Court while accepting CH. Revision No. 323-D/1991 on 17.3.2003 and the case has been remanded back to the learned Senior Civil Judge, Sahiwal for decision afresh after recording evidence of the parties on Issue No. 4, the impugned judgment passed by the learned Addl: Sessions Judge, Sahiwal maintaining conviction and sentence passed by the learned trial Court is not sustainable in the eyes of law, which is set aside by accepting this revision petition and the case is remanded back to the learned lower 'Appellate Court, where the appeal filed by the petitioners shall be deemed to be pending and decided on merits afresh without being influenced by the findings of the Courts made in the litigation pending between the parties on the civil side.