1. ' The appellant was charged and tried under section 161, P.P.C. Read with section 5(2) of Act. II of 1947 before the learned Special Anti-Corruption Provincial) Karachi, who has convicted and sentenced him to suffer R.I. For three months and to pay fine of Rs,2,000 or in default to undergo further R.I. For one month.
2. ' The brief facts giving rise to the present appeal are that complainant Sardar Nawaz Khan, lodged report on 15-4-1984 inter alia alleging therein, that he resides at Landhi Colony, Karachi. The house occupied by him was allotted to his father Maqbool Nawaz Khan. On 11-3-1958 his father died, and on the death of his father, his mother Mst. Sughra Khatoon become owner of the house. His mother constructed three shops on the above plot. His mother also died on 25-3-1980. He got the shops vacated and the same are being used as part of his house. On 8-4-1988 he went to the Excise and Taxation Office and met clerks Nabidad and Kafeel and informed them that the shops had been lying closed and he was not liable to pay the tax. The clerks told him that he had to pay tax amounting to Rs,1,050 and he cannot get exemption. He told them that he will pay the amount in four installments, on which the two clerks told him that if he pays half of the amount of the tax, they will get him exemption from payment of tax. However, the matter was ultimately settled at Rs,400 and Nabidad and Kafeel told him that he should bring the death certificate of his father, and make an application in the name of his mother. He told them that his mother was dead and he could not make application in the name of his mother. However, they told him to bring the death certificate of his father and they will get rest of things done. Nabidad and Kafeel told him to bring Rs,400 on 16-4-1984 during the office hours, and they will get his work done. It was further agreed that whosoever from them was present in the office, he should pay money to him and his work will be done. However, complainant decided to lodge the report instead of paying money to the two clerks, and therefore, he went and lodged report with the Anti-Corruption Police. The complainant was given Rs,400 in presence of Mashirs and Magistrate, and he paid the amount to accused Kafeel. After payment of bribe he gave signal to the raiding party as agreed and they recovered Rs,400 from the accused.. Later on co-accused Nabidad was also arrested, and after necessary investigation they were sent up before the Court.
3. ' A formal charge was framed against the appellant and co-accused to which they pleaded not guilty.
4. ' At the trial prosecution examined Mr. Abdul Aleem, A.C.M., P.W.1, he has produced F.I.R. As Exh.6, Mashirnama of handing over Rs,400 as Exh.7, Mashirnama of return of tainted money by the complainant to the Inspector as Exh.8, raid report as Exh.9, Mashirnama of payment of Rs,400 (second time) to the complainant as Exh.10, Mashirnama of recovery as Exh.11, Mashirnama of arrest and recovery of certain articles as Exh.12, recovery of application of complainant as Exh.13, another application along with two leaves as Exh.14, receipt in token of receiving the application as Exh.15 and raid report as Exh.16. Complainant Sardar Nawaz P.W.2, show-cause notice regarding amendment of tax Exh.21, Mashir Muhammad Iqbal P.W.3, Abdul Hameed Inspector Anti-Corruption, Karachi P.W.4, he has produced sanction for prosecution of the accused as Exh.25.
5. ' After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. In which, he has denied the allegation. He examined Wazir Ali, Despatcher in the Excise and Taxation Office in It' Division, Karachi as D.W.1, he has produced the file of case of Mst. Sughra Khatoon in 18 leaves as Exh.29, Abdul Bari Khan, Petition Writer in the Excise and Taxation Office D.W.2, Abdul Qadir Shah Jehan Retired Excise and Taxation Officer D.W.3.
6. ' After taking into consideration the evidence led by the prosecution and the defence, the learned trial Judge was pleased to convict the appellant as described above, while co-accused was acquitted. The present appeal is directed against the above judgment of conviction.
7. ' I have heard Mr. Shamsuddin, learned counsel appearing, for the appellant, Mr. MA.I. Qarni, learned counsel appearing for the State, and have gone through the R&P of the case.
8. ' In view of the order which propose to pass in the above appeal it is not necessary to refer to the evidence led by the parties.
9. Mr. Shamsuddin learned counsel appearing for the appellant has contended that the learned trial Judge had failed to append necessary certificate at the foot of the statement of the appellant recorded under section 342, Cr.P.C. A as envisaged by section 364, Cr.P.C., and therefore, the judgment was liable to be set aside.
10. Mr. M.A.I. Qarni, learned counsel appearing for the State, has contended that the provisions .Of section 364, Cr.P.C. Were mandatory, and since the learned trial Judge had failed to comply with the same the judgment was liable to be set aside.
11. ' In order to appreciate the legal point raised by the learneu counsel for the appellant it will be appreciated to refer to section 364, Cr.P.C. Which reads as under:- "Section 364.Examination of accused how recorded.-- (1) Whenever the accused is examined by any 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 in which he is examined, or if that is not practicable, 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.
12. ' In cases 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 the 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 reasons of such inability."
13. ' In the case of Salamat Ali alias Salamat Masih and another v. The State 1987 P Cr. L J 348 it was held by the Federal Shariat Court of Pakistan that: "Another illegality which was found in this case is that the statement of the appellant recorded under section 342, Cr.P.C. Did not bear certificate as contemplated by section 364; Cr.P.C. And, therefore, the matter was remanded back to the trial Court."
14. ' In the light of the above legal position, I have verified the statement recorded by the learned trial Judge which shows that the learned Judge had failed to comply with the above provision of law, no such certificate was appended but at the end words 'before me' only were written.
15. ' In the case of Bashir Ahmed Malik v. The State 1988 P Cr. L J 1693 while relying upon the above decision this Court had observed as under:: "In view of this legal position the provision being mandatory its noncompliance was definitely fatal and, therefore, the judgment of the trial Judge is liable to be set aside on this score alone."
16. In view of the above discussion,. I allow this appeal, set aside the conviction and sentence of the appellant, and remand the matter back to the learned Special Judge Anti-Corruption (Provincial)
17. Karachi, for retrial. The learned trial Judge shall record the statement of the accused afresh keeping in view the above provision of law, and shall, therefore, dispose of the case on accordance with law. I