MIAN MEHBOOB AHMED, C.J.--This appeal calls in question judgment, dated 18th of August, 1997 delivered by the learned Political Agent/Sessions Judge, Khyber whereby he convicted appellants under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced each of them to 14 years' R.I. And fine of Rs,1,00,000 in default of payment whereof to undergo simple imprisonment for one year. There is no mention about the benefit of section 382-B, Cr.P.C.
2. The facts as set up by the prosecution are that the political NaibTehsildar, Bara constituted a raiding party on 4-1-1997 for conducting a raid on a spy information on cluster of houses of Afghan Refugees at Gandao, Sepah area and from the houses of the appellants situated in the said area recovered and took into possession vide recovery memo.
Exh.P/1, the following articles:- 1Heroin powder 25 packets (1 Kg. each)
2Heroin-powder 14 packets (small size)
3Mindrex tablets l packet 4Naushadar 1 bag 5Kalashinkov rifles 4 with charger 6H.M.G. (Dangari) 1 No. 7Chemical (Black colour)
87.62 rounds 360 Nos.
9Electric packing machine1.No. 10Small size seals 3 Nos.
11Cash amount Rs.22,972 ' Nine persons including the appellant were arrested at the spot. Six of them, namely, Hayat Khan, Mir Dost, Issa Jan, Rohul Amin, Rohullah and Guloo Khan have been acquitted by the learned trial Court whereas 3 of them viz the appellants have been convicted and sentenced as mentioned in the opening para. Above.
3. After investigation the challan was submitted in the trial Court where formal charge under Articles 3 and 4 of the Prohibition Hadd Order was framed against all the accused who did not plead guilty and claimed trial.
4. The prosecution in support of its case produced the following 5 witnesses:--
(i) P.W.1 Subedar Sher Mir, a Member of the raiding party. He gave the detail of the proceedings of raid and recovery etc. In his testimony;
(ii) P.W.2 Subedar Ismail Khan, Line Officer, Khyber House Peshawar, another Member of the raiding party who stated that he alongwith Khassadar cordoned the houses of the Afghan Refugees at Gandao on the day of the incident
(iii) Naib-Subedar Maqbool stated that he was also a Member of the raiding party and participated in the raid on the day of recovery. The recovery memo. Exh.P.1 was prepared in his presence which he has signed as a witness;
(iv) P.W.4 Khassadar Muhammad Ali Khan is also a Member of the raiding party and a witness of the recovery memo. Exh.P.1; and
(v) P.W.5 Iftikhar Ahmad Khan, former Political Naib-Tehsildar, Bara deposed that under the direction of the Political Agent, Khyber raid was conducted on the houses of the Afghan Refugees situated at Gandao, Sepah area and gave in his statement the detail of the raid and recovery of various articles, the preparation of recovery memo. Exh.P.1, the lodging of report by him and the conduct of the investigation.
5. On the close of the prosecution evidence the statements of all the accused were recorded purportedly under section 342, Cr.P.C. All the accused denied the allegations against them and stated that they have been falsely implicated in the case. The recoveries of the articles from their houses were also denied by them. The learned trial Court vide the impugned judgment convicted three of the accused who are now appellants before this Court while 6 of the accused were acquitted.
6. While we were being taken through the evidence and the record of the case it has come to our notice that the statements of the accused under section 342, Cr.P.C. Have not been properly recorded and certification in accordance with the provisions of law (section 364, Cr.P.C) governing the subject has not been made by the trial Court.
7. Subsections (2) and (3) of section 364 of the Code of Criminal Procedure are reproduced hereunder for facility of reference.:-- "(2) When the whole is made confirmable to what he declares in 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.'
(3) 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 a 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."
' The requirement of subsection (2) is that the Magistrate or Judge trying the case 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. While subsection
(3) mandates that 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 a 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 and further that if the Magistrate or Judge is unable to make a memorandum as above required he shall record the reasons of such inability.
8. From the record of the trial we find that neither the certification as required by subsection (2) of section 364, Cr.P.C. Has been appended to the statements of the accused nor the requirement of subsection (3) of section 364, Cr.P.C. Complied with. The statement has not been recorded by the learned trial Judge himself and, therefore, he was bound to make the memorandum or give the certification why he was unable to make the memorandum. The statements of the accused recorded and available on the record are in the hand of someone else with a different ink than the ink with which the learned trial Court has appended the signatures under the statements.
9. The statements of the accused also show that they were not asked by the Court below as to whether they would like to appear as their own witnesses and make statements on oath as provided by section 340 (2), Cr.P.C. It has also been found that the accused were not asked whether they want to produce any evidence in their defence.
10. The provisions contained in section 364 (2) and (3), Cr.P.C. Are mandatory in nature and character and the trial Court while recording the statement of the accused under section 342, Cr.P.C. Under the mandate of the above provisions of necessity has to certify under his own hand in the manner prescribed that the examination of the accused was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
Similarly the learned Court was obliged in law to have complied with the requirement of subsection
(3) of section 364, Cr.P.C. By making a memorandum as mentioned therein or give certification of the inability to make such a memorandum. As already observed above the statements of the accused show that no certification whatsoever as required by section 364 (2), Cr.P.C. Has been appended by the Political Agent/Sessions Judge under the statement of the appellants purported to have been recorded under section 342, Cr.P.C. Nor has the Sessions Judge complied with the requirement of section 364 (3), Cr.P.C.
11. From a perusal of section 537 of the Code of Criminal Procedure it clearly emerges that illegalities in the recording of the statements under section 342, Cr.P.C. Caused by non-compliance of the provisions of section 364 (2) and (3), Cr.P.C. Do not fall within the ambit of section 537, Cr.P.C.
Inasmuch as it has resulted in failure of justice.
12. The learned counsel for the appellants as well as the learned counsel appearing on behalf of the State have candidly conceded that by the above lacunas the trial stands vitiated. The non- compliance of the above provisions of law viz. Section 364 (2) and (3), Cr.P.C. Is not mere irregularity which can be cured but is an illegality which is not curable. That being so on this short ground alone the appeal merits to be accepted and for trial afresh.
13. Yet another aspect of the matter which further aggravates the vitiation of the trial is that the Court below has not fulfilled its obligation/duty to inform the accused that they had a right under the law to make statements on oath as provided by section 340(2), Cr.P.C. And that it is their option without any risk attaching to either make the statements or not to make the same. Though it is the choice of the accused to make a statement under section 340(2), Cr.P.C. Or not to make it but it is the duty of the Court to inform the accused that he has the right and entitlement to make such a statement, which duty the Trial Court has not performed in the case in hand. The view that we are taking above finds support from Mst. Ameer Khatoon v. Faiz Ahmad and others (PLD 1991 SC E 787).
This neglect on the part of the Trial Court would constitute another factor to the invalidity of the trial.
14. Added to the above factor the further illegality committed by the Trial Court is that the appellants were not asked whether they would lead any F evidence in defence or not. This omission/neglect leads to the presumption that the appellants were not afforded the opportunity of leading defence evidence if they had so chosen.
' In view of the foregoing discussion, there is no escape from remanding the case. Resultantly, this appeal is accepted. The impugned judgment, dated 28th of August, 1997 of the learned Political Agent/Sessions Judge, Khyber is set aside and the case is remanded to the Court below for adjudication/trial afresh from the stage of recording proper and legal statements of the appellants under section 342, Cr.P.C. And specifically asking them whether they would like to appear to make statements on oath under section 340(2), Cr.P.C. And further as to whether they want to lead any evidence in defence or not.
15. The fresh trial from the stage mentioned above shall be concluded by the trial Court within two months from the date of receipt of this judgment.