1. ' NADEEM AZHAR SIDDIQI, J.---At the very outsetMr. Habibullah Ghori has submitted that the learned trial Court has committed illegality while recording statement of accused under section 342, Cr.P.C.
2. And instead of recording the certificate in his own hand signed on a typed certificate which is violation of mandatory provision of section 364, Cr.P.C. And is a fit case to be remanded to the trial Court for writing fresh judgment after recording fresh statement under section 342, Cr.P.C. The learned counsel relied upon the following reported cases:--
(1) Nawab Chandio v. The State 1990 MLD 1158.
(2) Allah Rakhio v. The State 2001 PCr.LJ 1959.
(3) Mst. Khial Meena v. State 1997 PCr.LJ 539.
(4) Unreported judgment in Cr.A. No,D-21 of 2000.
3. ' The learned State counsel has submitted that no injustice was caused to the applicant due to non-recording of the certificate in the hand of the trial Court and this is a formal defect curable under section 533, Cr. P.0 .
4. ' I have heard the learned counsel for the parties and perused the record made available before me.
5. ' The statement under section 342, Cr.P.C. Of the appellant was recorded and signed by the appellant and the trial Judge. In the bottom required certificate under section 364, Cr.P.C. Was typed and was also signed by the trial Judge. This objection was not taken at the stage of B trial.
6. The learned counsel also fails to point out any injustice or injury to the defence of the applicant. The contention that the conviction is liable to be set aside on the sole ground that certificate was not written in the hand of the trial Judge is not convincing in absence of any injustice caused to the applicant. In the reported case of Mst. Khail Meena the statement under section 364(2) was not appended under the statement of accused. In the case of Nawab Cahndio the statement under section 302, P.P.C. Was not signed by the accused as well as the same was not bearing certificate under section 364(3), Cr.P.C. In the case of Allah Rakhio the position was that trial Judge neither appended certificate as required under the law nor obtained signature of the accused on their statements. In the unreported case no specific findings were given with regard to non-recording the certificate in the hand of the trial Judge and the case was remanded on some other aspect of the case. In the above reported cases no certificate was appended and in one case the signatures of the accused was not taken on the statement and in that contest the Courts have held that non- compliance of the mandatory requirements of section 342(2), Cr.P.C. Is an illegality. The learned counsel has failed to cite any case law that the recording of certificate is necessary in thehandwriting of the trial Judge and signing the typed certificate is an illegality not curable. In absence of any injustice to the applicant this is a mere irregularity not amounted to vitiating the proceedings. In the case of Rizwan v. The State PLD 1986 Lahore 222 the learned Judge of the Lahore High Court while dealing with similar type of question has held as under:-- "The question whether omission in procedure of a trial had occasioned a failure of justice is a question of fact which must be determined before any finding about the nature of the irregularity can be given. Mere omission to append a certificate required under section 364, Cr.P.C. Would not mean that it had occasioned any failure of justice or that it had prejudiced the accused in his defence on merits."
7. ' In another reported case of Shahnawaz and another v. The State PLD 1986 FSC 242, the Full Bench of the Hon'ble Federal Shariat Court has held as under:-- "A bare reading of section makes it abundantly clear that the defect in recording statement of accused is curable if it had not injured the accused as to his defence on the merits. The matter is not res integra, 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 in failure of justice."
8. ' In the same reported case, it was further held as under:- "It is explicit that certificate has to be in the hand of trial Judge and the rubber stamp certificate does not fulfil the requirement of law. But as observed earlier the absence of certificate on the statement of the accused recorded under section 342, Cr.P.C. Would be fatal only if it can be shown that by its omission the accused has been injured in his defence on merits and it has in fact occasioned a failure of justice., Mear possibility or probability of a failure of justice is not sufficient which is also not the case of the appellant."
9. 'In view of above and following the judgment of the Lahore High Court and Federal Shariat Court, I am of the view that unless it is shown that due to non-observance of the provisions contained in section 364(2) failure of justice has been occasioned or the same has prejudiced the applicant in his defence, the proceedings cannot be vitiated and on this count alone the conviction cannot be set aside.
10. ' However while going through the judgment I noticed that the trial Court while convicting the applicant has simply stated that "Itherefore, convict and sentence accused Naimatullah and Bachal under section 302, read with section 149, P.P.C. (QDO) to suffer life imprisonment and also to pay Rs.25,000 each to be paid to the legal heirs of the deceased as compensation or in default to suffer R.I. For one year more". The trial Court has not mentioned in the judgment that under which clause of section 302, P.P.C. The appellant has been convicted. The trial Court while awarding conviction should bear in mind the provisions of section 302, P.P.C. In which the appellant was dealt with. From the judgment it is also clear that provisions of section 304, P.P.C. And Article 17 of Qanoon-e-Shahadat Order, 1984 were ignored. The trial Court has also not assigned any reasons for not imposing sentence of Qisas. Section 302; P.P.C. Was divided in three parts with three different kinds of punishment, i,e,, death as Qisas, death or imprisonment for life as Tazir and imprisonment upto 25 years. The learned Court is bound to record reasons awarding a specified punishment and ignoring the other specified punishments provided under section 302, P.P.C. By not doing so the trial Court has not properly followed the provisions of law resulting in miscarriage of justice either with the complainant or with the accused persons. By not doing so the very purpose of the Islamic provisions of law becomes frustrated. While dealing with similar situation in reported case of Muddassar alias Jimmi, v. State 1996 SCM R 3 the Honourable Supreme Court has laid down the guidelines for the trial Court to deal with such situation. The guidelines are reproduced as under:-- "(27). Before parting with the case it may be observed that the Sessions Judge had charged the petitioner and his companions for offence under sections 302/149/148, P.P.C. Manifestly the Court has not specified subsection of section 302. Its mention is neither mandatory nor necessary at the stage of the charge and may be ignored. But it concerns much if subsection is not' specified in the judgment where conviction is awarded. In the case in hands the trial Court has convicted the petitioner and his companions for offence under section 302, P.P.C. And imposed sentence of death but has failed to specify its subsection. The Court has also not assigned any reason for not imposing sentence of Qisas' or sentence of 25 years or lesser than that which sentences are also provided in the section. It also slipped from the notice of the High Court. Indeed, all is left to presumptions. It was bounded duty of the Court to have specified the relevant subsection of the section 302, P.P.C. Whereunder they were convicted and sentenced. Nothing should have been left to presumption. It is requirement of section 367, Cr.P.C. And is to be followed by the Courts."
11. ' In the reported case of Abdul Malik v. State (PLD 1996 FSC 1)the Federal Shariat Court has held that a Judge while awarding either of the two sentences will have to give reasons as to why he is exacting extreme penalty of death and does not consider the case fit for awarding lesser punishment of imprisonment for life.
12. ' Following the above guideline, I set aside the judgment of the trial Court in consequence thereof the conviction and sentence is also set aside. The case is remanded to the "trial Court for rewriting the judgment after hearing the parties" in the light 'of the above reported judgments. The exercise to be completed within six weeks positively.