MALIK HAQ NAWAZ, J.---The respondents accused were booked for the above offence vide FIR No, 46/2009 dated 05/05/2009 registered at Police Station Chilas.
2. The complainant Rooh ul Amin lodged the report in Police Station Chilas and raised the finger of suspicion against the present respondents. The respondents were arrested and after completion of investigation they were committed to judicial custody and the final police report was presented in the Court of learned Judicial Magistrate Chilas, District Diamer.
3. In order to prove the case prosecution examined 14 P.Ws. and closed its case. The accused were examined under section 342, Cr.P.C., however they did not opt to be examined on oath in disproof of the charges against them.
4. The learned Judicial Magistrate Chilas announced the verdict of acquittal vide order/judgment dated 28/05/2016. The State being aggrieved of the above judgment filed the instant criminal appeal bearing No, Cr. Appeal 33/16. The appeal was admitted for regular hearing and notices were issued to the respondents, who are present before the Court along with their learned defence counsel.
5. At the very outset the learned Dy. Advocate General was asked to go through the statements of the accused recorded under section 342, Cr.P.C., where the mandatory certification under section 364(2), Cr.P.C., was found missing. The learned Dy. Advocate General as usual tried to justify the same by submitting that it was a mere irregularity and is curable under section 537, Cr.P.C. The arguments of learned Dy. Advocate General are devoid of any legal force as the provisions of section 364(2), Cr.P.C. are mandatory in nature and non-compliance vitiates the trial. For the purpose of convenience section 364, Cr.P.C. is re-produced as below.
364. Examination of accused, how recorded.
1. Whenever the accused is examined by a 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 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 be interpreted 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 of 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. In a case 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 memorandum thereof in the language of the Court or in English, if he is sufficiently acquainted with 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 the section shall be deemed to apply to the examination of an accused person under section 263.
6. A careful study of above section 364, Cr.P.C. shows that the provisions of section 364(2), Cr.P.C. are mandatory in nature and put a legal obligation on the Magistrate to comply with the same while recording the statement of an accused under section 342, Cr.P.C. It is further observed that the examination of the accused under section 342, Cr.P.C. has been conducted in a stereo-type manner. The question No, 8 and Q. No, 15 could be referred in this regard. Question No, 8 relates only to accused Shabrang, whereas it has been put to all the accused, likewise Q. No, 15 and its same answer by all the accused does not appeal to a prudent mind. Recording statement of an accused under section 342, Cr.P.C., is not an empty formality and the questions put and answers given by the accused are distinctly to be recorded.
7. Since I have decided to remand the case, therefore, the merits of the case are not being discussed. The case is remanded back to the learned Judicial Magistrate Chilas for recording of statements of accused afresh and the learned Judicial Magistrate will re-hear the case and will decide the same on merits without being influenced by the judgment of acquittal recorded by his predecessor. Parties are directed to appear before the learned trial Court on 05-11-2016 positively and since the case is lingering on since 2009. The trial Court is directed to decide the case within 02 months from the receipt of this order and submit compliance report to Registrar of this Court, who will place the same before me in Chamber for perusal.