TASSADUQ HUSSAIN JILANI, J.- Petitioners were tried by the Judicial Magistrate in the case registered vide FIR No.342 dated 11.9.1999 under sections 337-LII, 337-F5, 337-A, 34 PPC Police Station Bhowana and vide the judgment dated 27.5.2003. They were convicted and sentenced under section 337- A(1) to undergo R.I. For one year and to pay Damam amount of Rs.1000/- each to be paid to the injured. This conviction was challenged in appeal and learned Additional Sessions Judge, Chiniot vide the judgment dated 25.7.2003 set aside the judgment remanded the case to the learned Trial Court on the ground that the learned Trial Court had not certified the statements of the appellants accused under section 364(2), Cr.P.C. Petitioners have challenged the afore-referred judgment solely on the ground that the learned Court should not have remanded the case and could certify those statement under section 533, Cr.P.C.
2. Learned counsel for the petitioners submitted that petitioners had undergone the agony of protracted trial, that the irregularity on the basis of which learned Appellate Court remanded the case was a curable irregularity and learned Appellate Court should have decide the appeal on merit regarding the procedure laid down in section 533 Cr.P.C.
3. Rai Bahir Ahmad, Advocate was called to assist as Amicus Curiae. Learned Amicus Curiae submitted that a bare reading of section 533, Cr.P.C, would indicate that any irregularity with reference to section 364, Cr.P.C. Can be cured and the learned Appellate Court was not justified in remanding the case. He added that section 364(2), Cr.P.C, is a beneficial provision for the accused in support of the submissions made learned counsel relied on Hazrat Jamal and another vs. The State (PLD 1958 SC Pak 383), Sant Ram vs. The State )AIR 1953 H.P 105) Muhammad Asharaf etc. Vs. The State (1989 P.Cr.L.J 1803) Muhammad Hussain etc. Vs. The State (PLD 1986 Lahore 34) and Shah Nawaz etc. Vs. The State (PLD 1986 FSC 242).
4. Learned Additional Advocate-General defended the impugned order by submitting if the law mandates a particular thing to be done in that manner, that the non certification of statement of the accused is not curable and the learned Appellate Court has rightly remanded the case.
5. I heard have learned counsel for the parties and learned Law Officer and learned amicus curiae and have given anxious consideration to the submissions made. For a proper appreciation of the issue raised it would be necessary to refer to the relevant provision under consideration. Section 364, Cr.P.C, read as under:- "Examination of accused how recorded (1) Whenever the accused is examined by any Magistrate or by any Court other than a High Court, the whose 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, of, if he does not understand the language in which it is written, shall be intercepted to him in a language which he understands and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge or such Court, and such Magistrate or Judge shall certify under his own hand 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.
(3) ln cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263."
6. Ln terms of sub-section (2), Section 364 referred to above the Judge or Magistrate has to "certify under his own hand 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." Admittedly this provision has not been complied with. An irregularity or illegality becomes incurable only if there is provision in the Cr.P.C, for its rectification or cure. Section 533 specifically caters to that eventually it reads as under:- "533. Non-compliance of provisions of section 164 or 364. (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 evidence, finds that any of the provisions of either of such sections 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 any thing 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. The provisions of this section apply to Court of appeal, reference and revision.
(2) ln Shah Nawaz etc. Vs. The State (PLD 1986 FSC 242) precisely this question was commented upon and at page 245 while reproducing the test of section 533 the Court was pleased to observe as under:- "A bare reading of this section makes it abundantly clear that the defect in recording statement of the accused is curable if it had not injured the accused as to his defence on the merits. The matter is not res integral under section 537, Cr.P.C, any omission, error or irregularity in the proceedings during trial would not render the sentence or finding passed by a competent Court to be reversed or altered if it has not occasioned a failure of justice. The learned counsel for the appellants has not been able to show that absence of certificate on the statement of the accused has prejudiced him in defence or occasioned a failure of justice".
7. The afore-referred view finds reiteration in Muhammad Hussain etc. Vs. The State PLD 1986 Lahore 34 and Muhammad Ashraf, etc. Vs. The State (1989 P.Cr.L.J 1803), The precedent case-law to which reference has been made by the learned Additional Advocate-General is distinguishable and is not therefore, relevant.
8. For what has been discussed above, this petition is allowed, impugned order is set aside and the case is remanded back to the Additional Sessions Judge, who passed the impugned order with a direction to decide the petitioner's appeal on merit.