Kafil Ahmad son of Muhammad Hussain, alongwith his co--accused Mumtaz Ahmad, was challaned under section 409/420, P. P. C. For having misappropriated a sum of Rs. 22,867.80. He was convicted by Special Judge, Anti-Corruption, Lahore, vide order dated 15th June, 1981 under section 409, P. P. C. And sentenced to three years' R. I. And a fine of Rs. 25,000, in default of payment of fine to undergo further R. I. For 1-- years. A sum of Rs. 22,800, on realisation, has been directed to be paid as compensation to the Punjab Road Transport Board. The convict has filed appeal.
2. Learned counsel for the appellant before advancing the arguments on merits contended that the trial in this case has not been con--ducted in accordance with law and that the appellant was not allowed opportunity to produce defence in spite of the fact that he had opted to produce defence in his statement under section 342, Cr. P. C.
3. The record shows that the appellant had opted to produce defence in his statement under section 342, Cr. P. C. His co-accused had also opted to produce defence. Two D. Ws. Were produced by him. Nazir Ahmad (D. W. 3) was produced by the appellant in his defence. His statement was recorded on 5th March, 1981. On the same day the statement of the appellant has been recorded in the following words :- This statement does not bear the signature of the appellant although it is signed by the Presiding Officer.
4. Learned counsel for the appellant has contended that the appellant even at that stage had taken up the position that this state--ment was not made by him and in Transfer Application (Cr.
M. 79/T of 1981), filed by him in the High Court, he bad taken up this ground. Learned counsel vehemently argued that this amounted to closing the defence of the appellant arbitrarily and the illegality is not curable under section 537, Cr. P. C.
5. The appellant, who is present, on query has stated that if his defence evidence had not been closed, he would have produced reliable evidence to disprove the charge, He has even now expressed his desire and keenness to produce defence evidence. His plea is that the audit report was prepared by two persons, one of them, has been produced at the trial while the other was ready to appear in defence of the appellant but that could not be done as the defence was closed.
6. On behalf of the State it has been argued that the illegality, if any, is curable under section 537, Cr. P. C. And that since the state--ment has been signed by the Presiding Officer, it cannot be assumed that the accused did not make the statement. It is contended that the signature of the appellant might not have been obtained inadver--tently. Reference has also been made to section 80 of the Evidence Act. Learned counsel for the State has strenuously argued that unless a material prejudice is shown to have been caused to the accused, no weight can be attached to any formality not having been observed. In this regard reference has been made to Ibrahim etc. v. Slate (PLD 1959 Lab. 715).
7. I have considered the contentions raised by the learned counsel for the parties. The facts of the case referred by the learned counsel for the State (PLD 1959 Lah. 715) were different. In that case the learned Committing Magistrate had not given opportunity to the accused to furnish a list of witnesses to be examined in defence during trial before the Sessions Court. Some of the accused were convicted and some of them were acquitted, The State filed appeal against the acquitted accused. During the hearing of that appeal this point was taken on behalf of the accused. Mr. Justice Shabbir Ahmad (as be then was) held that failure of the Magistrate to question the accused under section 211 (1), Cr. P. C. Is not incurable omission unless it results in failure of justice, w bile Mr. Justice A. R. Changez (as he then was) held that it was an illegality not curable under section 537, Cr. P. C. Because of difference of opinion, the matter was referred to Mr. Justice M. R. Kayani, Chief Justice, (as he then was) his Lordship agreed with the view expressed by Mr. Justice Shabbir Ahmad. The important aspect in that case was that the accused while making statement under section 342, Cr. P. C. During trial in the Court of Session had replied in the negative to the question whether he would like to produce defence. This circumstance alone was sufficient to come to the conclusion that no prejudice was caused to the accused.
In the present case, there is no statement of the accused that he did not wish to produce defence evidence. The one recorded by the trial Court does not bear the signature of the appellants and its contents are also denied. Even the words, "RO&AC" ---Sun kar Tasleem Kia--- have not been recorded.
8. Section 80 of the Evidence Act, referred to by the learned Assistant Advocate-General, reads as follows :- ---80. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, by any such officer as aforesaid, the Court shall presume-that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or 'confession was duly taken.--- The stress in this section is on the underlined words "taken in accord--ance with law". The presumption can only be attached to things done in accordance with law. The law is clear that the statement made by the accused shall be signed by him and if the signatures of the accused do not appear, it cannot be deemed to have been recorded in accordance with law.
9. In the circumstances narrated above, I feel convinced that the appellant was not given a fair chance of producing defence and as such trial cannot be deemed to have been conducted in accordance with law.
10. For the reasons enumerated above, the order of the Special Judge, Anti-Corruption, Lahore, dated 15th June, 1981 is set aside. The case is remanded to the trial Court, who will provide opportunity to the appellant to produce his defence and thereafter pass a fresh order.
11. The appellant, who is present, has been directed to appear before the trial Court on 31st May, 1983. The learned trial Court shall con--clude the trial within one and a half months after the receipt of this order. If considered necessary the trial Court may proceed day to day.
12. The appellant is on bail. Learned counsel for the appellant has stated that during trial the appellant was on bail, therefore, he may be allowed to remain on bail till fresh order is passed by the trial Court. Order accordingly. The learned trial Court may, however, direct the appellant to file fresh bail bonds.