These two appeals filed by one and the same convict/accused Muhammad Farooq son of Muhammad Suleman resident of House No,NE/247, Nighatabad Road, Rawalpindi, are directed against the judgment dated 9-1-1996 passed by the learned Judicial Magistrate Section 30, Attock, whereby finding him guilty under a case F.I.R. No,410 of 1994 registered on 1-5-1994 at Police Station Attock Khurd under the provisions of Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, he has convicted and sentenced him to undergo three years' R.I., whipping numbering ten stripes and a fine of Rs,2,000 or in default of payment of fine to suffer further three months' R.I.
2. I have heard both learned counsel for the appellant as well as learned counsel for the State and have perused the record with their assistance. Both the learned counsel submitted that the case needs remand to the learned Sessions Judge, Attock, for fresh trial as there are several irregularities in the case and the learned trial Court has not proceeded to conduct the case in accordance with law.
3. It transpires from the record that the case was registered at Excise Cheek-Post Mullan Mansoor, Attock, on 1-5-1994 and the challan was submitted on 15-5-1994. The appellant/accused was formally charged on 26-10-1994 and thereafter, on 20-11-1994 and 22-2-1995 respectively, the statements of P.W.1, Tariq Mahmood, Excise Inspector and P.W.2 Muhammad Basharat Kiyani, A.S.I., were recorded. However, instead of recording the statements of main witnesses Muzaffar Khan and Khan Afsar both constables Excise Mullan Mansoor who were witnesses of recovery memo. Exh.PA, the learned Magistrate without bringing on record the reasons for discarding to record the evidence of aforementioned recovery witnesses and opting to record the confessional statement of appellant/accused, recorded the statement of appellant/accused under section 342, Cr.P.C., on 9-1-1996. However, while recording his statement, no incriminating circumstances were put to him as required under the law. It is not known why the statement of accused was recorded in that manner in such a hurry without complying with the laid down legal provisions. It is also not known whether the said confessional statement is the result of despondency occasioned by delay in getting the statements of P.Ws. duly recorded or is a volunatrily-made clean breast confession of offence committed by him. Neither any effort has been made to enable the appellant/accused as required under section 342, Cr.P.C., to explain the circumstances that appeared in the evidence against him nor the legal requirements, as envisaged by section 364, Cr.P.C., have been fulfilled.
4. In this view of the matter, without going into the merits, the impugned judgment is set aside and the case is remanded to the learned Sessions Judge, Attock, with the direction that the appellant/accused be tried afresh from the stage of recording the statement of P.W.3 onward and getting statement of the appellant/accused recorded in accordance with law, as required. The learned Session Judge may entrust this case to a Judicial Magistrate Section 30 other than the learned Magistrate who has recorded the impugned judgment. Being an old case the learned Sessions Judge may direct the concerned Magistrate to record the evidence as well as the statement of accused, providing him due opportunity for defence, as required under section 340(2), Cr.P.C., hear learned counsel for the parties and decide the matter as soon as possible but not later than three months. The office is directed to send the whole record to the learned Sessions Judge concerned. The appellant who is present on bail shall continue to remain on bail till the decision of his case by the Judicial Magistrate, Attock.