' The appellant, Jehandad, was convicted by EAC-1/MIC, Mansehra specially empowered under section 30, Cr.P.C., through his judgment and order dated 4-11-1993, whereby the appellant was sentenced under section 326, P.P.C. To undergo 5 years' R.I. And also to pay fine of Rs,5,000 in default whereof to undergo further one year S.I. And by the same order, the appellant was convicted under section 452, P.P.C. And was also sentenced to undergo three years' R.I. And to pay a fine of Rs,5,000 in default whereof to undergo further one year S.I. It was further ordered that all the sentences shall run one after the other, consecutively. In view of the quantum of sentence, being more than 4 years, the present appeal has been filed in this Court to challenge the conviction and sentence passed on appellant in respect of the aforesaid offences.
2. At the very outset, learned counsel Mirza Abdullah Jan, Advocate, appearing for the appellant, seeks to impeach the conviction and sentence passed in this case on two-fold grounds.
3. In the first instance, it was stressed that the requirement of section 342, Cr.P.C. Is that each piece of evidence and each circumstance, having an incriminating effect against the accused in relation to the offence charged, should be put to him while being examined thereunder.
The purpose of such examination is that the Court should, give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended solely for his benefit. It is, in effect, an integral part of the legal system for enabling the Court to discover the truth and it often happens that accused's explanation, or his failure to explain constitutes incriminatory circumstance against him. The result of the examination may certainly benefit the accused if a reasonable explanation is offered by him, it may, however, be injurious to him if no explanation or untrue or illogical explanation is tendered.
Non-compliance or failure to observe this essential part of the scheme can cause prejudice to either of the parties and grievance can be made by any of the parties interested in the result of the proceedings. In short, the examination of accused, after close of the prosecution evidence, is obligatory and cannot be dispensed with. In the case in hand, some questions are put to accused in the nature of cross-examination and certain incriminating circumstances are omitted in the examination of the accused under section 342, Cr.P.C. This needs and requires fresh examination in the light of judicial record.
4. In the next place, it was pointed out that consistently with the above observations, a procedure is prescribed for recording a statement of the accused. Before a statement can be received in evidence, it is necessary to see that such statement has been deliberately made and recorded and that after being recorded, it has been read over to the accused to accord assurance that his words have been faithfully taken down. Thereafter the signature of the accused be taken at the end of his statement in token of its correctness. The Court is then required to furnish requisite certificate under his hand to the effect that the statement of the accused was recorded in his presence and hearing and contained full and true account of the statement made by him. Merely affixing a stereotype stamp on the statement of the accused will by no means satisfy the essential requirements of law as laid down in section 364, for Cr.P.C. Which is mandatory in its contents and effect. In the instant case, both the signature of the accused to his statement under section 342, Cr.P.C. And the certificate by the Court as required by section 364, Cr.P.C. Are altogether wanting.
This being so, there is a disregard of the form of legal process, so vital to a criminal trial, in the failure of compliance with sections 342 and 364, Cr.P.C. And such a wilful omission and neglect is not curable under section 533, Cr.P.C. This act of the learned Magistrate was IF not only a simple negligence to follow the requirements of the law but indeed was flagrant violation of the mandatory provision of sections 342 1 and 364, Cr.P.C.
5. Nothing is too well settled than this, that in case where Statute provides a procedure for doing a thing in a particular manner, that thing should be performed in that manner and in no other way or it should not be done at all. By intendment and necessary implication, such a statute prohibits doing of a thing in any other manner, especially when the procedure so laid down is usually construed to be an imperative one. Their non-compliance would certainly invalidate all the subsequent proceedings from the stage of lapse, orders passed or made by the concerned Court.
In this context, I cannot do better than to quote the following weighty observations of the Supreme Court in case of Atta Muhammad v. Settlement Commissioner reported in PLD 1971 SC 61: "It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory?
' It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacted that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R (1848) 13 QB 30, it was stated that `the words negative and affirmative of a statute mean nothing.
The question is whether they are repugnant or not that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same'.
In Liverpool Borrough Bank. v. Turner (1861) 30 LJCH 379, Lord Campbell observed as follows:-- ' No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
' In Howard v. Botlingdon (1877) 2 PD 203, Lord Penzance after citing this dictum of Lord Campbell added as follows:-- "I believe as far as any rule is concerned, you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provisions to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory.
' One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language."
6. Respectfully following the above dicta, I feel free to hold that the learned trial Magistrate has not complied with the express and mandatory provisions of section 364, Cr.P.C. Inasmuch as, he has singularly failed to obtain signature of the accused on his statement recorded under section 342, Cr.P.C. And has also omitted to give certificate in his own handwriting that the examination of accused was made in his presence and hearing and that the record contained a full and true account of statement made by him. The flaw on either score constitutes an illegality and not a mere technical defect or irregularity. The trial held and the judgment rendered in the case stands vitiated on this main ground and consequently I need not touch merits of the case.
7. Resultantly, I accept the appeal, set aside the conviction and sentence passed on the appellant by reason of impugned judgment and remit the case back to the trial Magistrate with the direction to record the statement of the accused afresh in the light of section 342, Cr.P.C. Read with section 364(3), Cr.P.C. And then dispose of the case on hearing arguments on existing evidence on record.
The appellant shall remain on bail till the final decision of the case as already directed.