Muhammad Tariq Abbasi, J. This revision petition, calls in question the judgment dated 24.01.2020 of the learned Additional Sessions Judge, Sohawa, District Jhelum, whereby , while setting-aside, conviction and sentence of the petitioners, recorded through judgment dated 23.07.2019, passed by the learned Magistrate Section 30, Sohawa, District Jhelum, the case has been remanded for fresh decision, after framing of proper charge and recording statements under Section 342 Cr .P.C of the petitioners, as per law .
2. In case FIR No.76 dated 24.04.2014, registered under Sections 337-A(i),337-A(ii),337-L(2),452,34 PPC at Police Station Sohawa, District Jhelum, the petitioners were challaned to the Court. Formal charge against them was framed but denied, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as five witnesses, where-after statements under Section 342 Cr.P.C of the petitioners were recorded and finally through the judgment dated 23.07.2019 of the learned Judicial Magistrate Section 30, Sohawa, District Jhelum, they were convicted and sentenced as under:- AZHAR MANZOOR & NIGHA T SUL TANA (PETITIONERS)
Under Section 452 PPC to simple Imprisonment for six months alongwith fine of Rs.10000/- each, in default whereof to further undergo SI for fifteen days, each.
AZHAR MANZOOR (PETITIONER)
Under Section 337-A(i) PPC - to pay Daman of Rs.50,000/- to the injured Mst. Manzoor Begum, complainant.
Under Section 337-A(ii) PPC to pay Arsh i.e. 5% of the Diyat amount (Rs.1 16,010.1/-) to the injured Manzoo r Begum, complainant.
3. The petitioners had challenged their above mentioned conviction and sentence, by way of an appeal, before the learned Additional Sessions Judge, Sohawa, District Jhelum, during hearing of which, it transpired that there was a compound charge against the petitioners, and even their statements under Section 342 Cr.PC were in violation of the procedure. Consequently , the learned Appellate Court, had decided the appeal in the above stated manner .
4. The precise allegations, against the petitioners, were that they, while armed with deadly weapons, by trespassing into house of Mst. Manzoor Begum (hereinafter referred to as the respondent) have caused injuries to her, punishable under Sections 337-A(i), 337-A(ii) and 337-L(2) PPC but the learned trial Court on 01.04.2015 had framed the charge, against the petitioners, in the following terms:- "That on 21.04.2014 at about 3.00 p.m. in the area of Bakrala, within the territorial jurisdiction of police station Sohawa, you above named accused persons duly armed with deadly weapons committed house trespass by entering into house of complainant and having common object assaulted upon the complainant and inflicted injuries to her person, hence, you have committe d the offences punishable u/s 337-AI,337-AII,337-LII,452,34 P .P.C which are within the cognizance of this court.
And I hereby directed that you accused be tried by this court for above said charge."
5. The charge in the above mentioned manner , being contrary to Section 233 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) , could not be given any legal sanctity . The said section prescribes the following criteria for a charge relating to dif ferent of fences:- Separate charges for distinct offences.--For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately , except in the cases mentioned in Sections 234, 235,236 and 239.
6. It has further been noticed that statements of the complainant and Mst. Roubina Shaheen, recorded as PW-1 and PW-2, respectively are not with the hand of the learned trial Court but recorded by Reader of the Court. No doubt, as per Section 356 of the Code, evidence of a witness could be recorded by a person, other than the Court but subject to certain terms and conditions. In such a situation, the Court should have made a memorandum in the terms, as mentioned in the said provision, which for convenience, is reproduced here-in-below:- "356 Record in other cases.--[(1) In trials before Courts of Session and in inquiries under Chapter Xll] the evidence of each witness shall be taken down in writing in the language or the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge.
(2) Evidence given in English.-- When the evidence of such witness is given in English, the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, or the language or the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record.
(2-A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record.
(3) Memorandum when evidence not taken down by the Magistrate or Judge himself.-- In cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record.
(4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reason of his inability to make it."
7. Consequently , it can safely be said that evidence of the above named witnesses, being against the above mentioned criteria, laid down in the above said section could not be approved under the law .
8. It has also been noticed that at the bottom of statement under Section 342 Cr.P.C of Azhar Manzoor , petitioner , the following certificate has been given:- "Certified that the statement of the accused has been recorded through Raja Jamshed Ahmed Advocate in his true words and it contains the true account of what has been stated by him and has been read over to him and he has put his thumb impression admitting it correct and the same has been dictated by me in open court. Read, corrected (where necessary) and signed by me."
9. Admittedly , Raja Jamshed Ahmed, Advocate was not counsel for the above named petitioner , rather he was counsel for the complainant party . It is contended that as personal appearance of the above named petitioner was dispensed with, hence his above said statement was recorded through his counse l. If the situation was as stated above, even then the answer to the quest ions put under Section 342 Cr.PC should have been made by the counsel of the said petitioner and not of the opposite party .
10. The above mentioned alleged conten tion could not be given any weight on the grounds that in the statement under Section 342 Cr.PC., signatures and thumb impression of the above named petitioner are also available.
Meaning thereby that at that time, he was very much available before the learned trial Court.
11. Due to the above mentioned alarming defects, the trial could not be termed as per the procedure and law. In such like situation, proper course is to direct for de novo trial.
12. Although, the learned Appellate Cour t under certain legal defects has set-aside the conviction and sentence, awarded to the petitioners, by the learned trial Court but without disturbing the judgment of the said Court, which is again a patent illegality .
13. Resultantly , the instant revision petitio n is accepted, the judgment dated 24.01.2020 of the learned Appellate Court is modified to the effect that by way of it, the judgment dated 23.07.2019 of the learned trial Court shall be deemed as set-aside, with a direction to hold de novo trial and decide the case, afresh.