' SHAH JEHAN KHAN AKHUNDZADA, J.---This criminal revision petition under section 435 read with section 439 Cr.P.C. Has been directed against the judgment/order dated 29-2-2012 of the learned Judicial Magistrate, Charsadda whereby he convicted the appellants under section 13 Arms Ordinance and sentenced him to three years imprisonment each along with fine of Rs,30,000 each or in default to further undergo six months' SI and against the judgment/order dated 5-9-2012 of Sessions Judge, Charsadda whereby he enhanced their sentence from three years' to four years'
R.I. And also the fine from Rs,30,000 to Rs,50,000 each.
2. The allegations against the appellants as per F.I.R. Are that huge quantity of arms and ammunitions have been recovered from the secret cavities of the vehicles driven by them at the relevant time. Thus, they were arrested on the spot and arms and ammunitions were taken into possession by the Investigating Officer vide recovery memos available on the judicial file and to this effect a case vide F.I.R. No,199 was registered on 17-4-2010 at Police Station Prang District Charsadda under section 13 Arms Ordinance against the appellants and four others accused who were later on acquitted.
3. The appellants along with their co-accused were put to trial and after conclusion of the trial learned Judicial Magistrate, Charsadda vide his judgment/order acquitted the four accused namely Sajid, Tariq Shah, Muhammad Yasir and Muhammad Arif while convicted the present petitioners namely Muhammad Rafiq and Muhammad Ibrahim under section 13 Arms Ordinance and sentenced each of them to undergo rigorous imprisonment for three years and a fine of Rs,30,000 each or in default the payment of fine shall further undergo six months' S.I. Vide his judgrhent/order dated 29-2-2012.
4. The petitioners challenged their conviction and sentence through Criminal Appeal No,18 of 2012 while District Public Prosecutor District Charsadda also filed crimint'1 revision under section 439-A, Cr.P.C. For their enhancement of sentences and also fine before the learned Sessions Judge, Charsadda who vide his consolidated judgment/order dated 5-9-2012 dismissed the appeal filed by the petitioners and while accepting the criminal revision filed by the learned District Public Prosecutor, Charsadda enhanced the sentence of the petitioners from three years to four years' R.I.
And also enhanced the payment of fine from Rs,30,000 to Rs,50,000 each or in default thereof to further undergo one year's R.I. Each. Now the petitioners have filed the instant criminal revision petition.
5.. At the very outset learned counsel for the petitioners contended that the statement of petitioners recorded under section 342, Cr.P.C. Is to be certified under subsection (2) of section 364, Cr.P.C. Which is mandatory in nature and the present statements of the accused certified under section 342, Cr.P.C. Are of no legal effect because the same do not bear a certificate under the provisions of subsection (2) of section 364, Cr.P.C., of the trial Court before whom it was recorded, hence this illegality committed by the trial Court, in my view, vitiated the whole trial therefore, the impugned judgment and order is nullity in the eye of law and prayed for its setting aside it and acquittal of the petitioners.
6. Since legal objection has been raised by the learned counsel for the petitioners, therefore, I would like to give findings on it first. The legal objection is as under:-- "that the statement of accused recorded under section 342 Cr.P.C., does not bear the mandatory certificate within the meaning of subsection (2) of section 364 Cr.P.C., therefore, according to him, this statement of accused is of no legal effect and as such violation of mandatory provision of law committed by the trial Court vitiates the whole trial".
7. Perusal of the record would reveal that the statements of accused under section 342, Cr.P.C., have not been certified within the meaning of subsection (2) of section 364, Cr.P.C., by the trial Court, therefore, the legal objections raised by counsel for the appellant, holds water because perusal of the statement of the accused recorded under section 342 Cr.P.C., shows that while recording it, the law on the subject has not been followed by the trial Court stricto sensu. Perusal of the statement of accused recorded under section 342 Cr.P.C., reveals that the same does not bear a certificate of the trial Court within the meaning of subsection (2) of section 364, Cr.P.C., hence I hold that the said statements of the accused/appellants under section 342, Cr.P.C., having not been certified within the meaning of subsection (2) of section 364, Cr.P.C., which is mandatory in nature have no evidentiary value rather violation of it amounts to illegality which cannot be cured within the meaning of section 537 Cr.P.C. Thus, by placing reliance on the case law reported in 1987 PCr.LJ 384 [Federal Shariat Courts, "Salamat Ali alias Salmat Masih and another v. The State" and 1990 M LD 1158 Karachi], "Nawab Chandio and another v. The State", I am of the view that non- compliance of the mandatory provisions of section 364, Cr.P.C. At the time of recording statement of accused, is violation of the mandatory provision of law on the subject, which has vitiated the whole trial and therefore, the impugned judgment and order of conviction passed by the trial Court as well as by the Sessions Judge, Charsadda is not sustainable in the eye of law and is therefore, liable to be set aside. Hence, I am left with no option but to accept this revision petition, set aside the impugned judgment and order of conviction passed by the learned courts below in respect of conviction of the petitioners and consequently remand the case to the learned trial Court with the direction to record the statement of petitioners under section 342, Cr.P.C. In accordance with law on the subject and thereafter decide the case expeditiously on merits after the receipt of the order of this Court. Needless to mention here that petitioners will be at liberty to produce defence evidence or to be examined on oath within the meaning of section 340 subsection (2) Cr.P.C. If they so desire. The trial Court while appraising the evidence on record should also apply its independent judicial mind, while deciding the case in hand.