FAZAL-UR-REHMAN, J.--These Criminal Appeals have been directed against the judgment dated 18-2-2000 passed by Special Judge by which he convicted the appellants for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter called as Act) and sentenced them to suffer life imprisonment and to pay fine of Rs,100,000 each and in default of payment of fine to further undergo S.I. For a period of one year. The movable and immovable property of the accused were also ordered to be confiscated in favour of State. The benefit of section 382-B, Cr.P.C. Was also extended to the appellants. Since in both of the abovementioned appeals common questions of law and facts are involved and arising out of one and the same judgment therefore, they will be disposed of together by one and the same judgment.
2. Briefly stated the facts of the case are that on 20-10-1999 P.W.1 Abdul Ghafoor, Levies Sepoy along with P.W. Junaid Khan and Muhammad Waris, Levies Sepoy (not examined) was on patrolling. It is stated that when the levies party reached the place where the signboard of Abdul Hafiz Badini Shaheed is installed, (they) saw two persons in a suspicious circumstance. It is stated that appellant Mst. Azima was found in possession of heroin. It is stated that Shandad made an attempt to run away but he was caught hold by the levies party. It is stated that Abdul Ghafoor then reported the matter and Tehsildar took the seized heroin into possession vide Recovery Memo.
Exh.P/2-A to which P.W. Junaid Khan and Muhammad Waris stood as marginal witnesses. During the course of investigation appellant Akhtar Muhammad was also arrested. After usual investigation the appellants and convicted accused Shandad were sent up to face their trial under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 109, P.P.C. And the name of Hameedullah son of Haji Baloch Khan was placed in Column No,2 of the Challan.
3. On 7-12-1999 charge under section 9(c), Control of Narcotic Substances Act, 1997 was framed against the accused/appellants and convicted accused Shandad by the trial Court to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined P.W.1 Abdul Ghafoor (complainant), P.W.2 Junaid Khan, Recovery Witness, P.W.3 Safdar Khan, Levies employee and P.W.4 Shabir Ahmed, Teshildar, Seizing and Investigating Officer.
5. In their statements recorded under section 342, Cr.P.C. The accused/appellants and convicted accused Shandad have disputed the case of the prosecution and pleaded their innocence. When asked as to why the prosecution had deposed against them to which they replied to the trial Court that they have falsely been implicated with the commission of alleged offence. Neither they made their statements on oath nor led evidence in their defence.
6. The learned trial Court after hearing the counsel for the parties and assessment of the evidence came to the conclusion that the charge under section 9 has been established. According to the trial Court the statements of the prosecution witnesses were found to be corroborative and the levies officials are good witnesses and no mala fide was proved against them. The learned trial Court while answering Points Nos.1 and 2 which he had formulated regarding recovery and transportation, concluded in following words:-- "To bring home the charge the prosecution is based on the above witnesses. All the witnesses are Levies. Since the witnesses saw the accused in deserted area in night suddenly and at that time none were present, therefore, non-private witness was associated with the recovery. Besides this private persons are rebutant to be witness due to fear of future enmity. It may be further added that it has been headly superior Court that levies/police is good witness unless mala fide proved which is not in this case. That witnesses are stuck to their previous statement. They made constant statement to the effect that 2-1/2 kg. Heroin was recovered from the possession of accused Mst.
Azima. She is old lady. She and accused were found together in deserted area. She is so old and without help of accused Akhtar Muhammad she could not have took away the recovered heroin to any place where they wanted. It may be further added that on the pointation of accused Shandad the accused Akhtar Muhammad was arrested. According to the accused they brought heroin from Akhtar Muhammad. The report of Chemical Expert reflects that the recovered material is heroin."
7. We have heard Mr. Qahir Shah, Advocate learned counsel for appellant Akhtar Muhammad, Mr. Waseem Jadoon, Advocate learned counsel for pauper. Appellant Mst. Azima and Mr.Ikhtiar Khan Marghazani, learne,! Assistant Advocate-General for State.
8. After hearing learned counsel for the parties and having gone through the record of the case, we are of the view that there is no need to go into the merits of the case as we inclined to set aside the conviction of the appellants and order retrial for inter alia two-fold main reasons: noncompliance of the provisions of section 367, Cr.P.C. And secondly on account of legal infirmity in recording the statements of accused/appellants under section 342, Cr.P.C. We may observe that such short-cut method as adopted in the instant case in doing justice cannot be appreciated. It is the cardinal principle of administration of criminal Justice, that justice should not only be done but should be seen to have been done.
9. We see force in the contention of learned counsel for appellant Akhtar Muhammad that the impugned judgment cannot be termed as a proper and speaking judgment. According to section 367 of the Cr.P.C: a judgment shall contain the points for determination, the decision thereon and the reasons for the decision. The judgment must not be vague; it must conform all the requirements of section 367, Cr.P.C. The impugned judgment on the face of it seems to be not legal.
10. The perusal of record also indicates that the examination of the appellants have not been made in accordance with the provisions of section 342, Cr.P.C. Accused cannot be questioned unless a circumstance appears against him in evidence. Statement of accused under section 342, Cr.P.C.
Has to be accepted or rejected in its entirety, We also found that the learned Sessions Judge, Nushki has failed to give requisite certificates under his hand to the effect that the statements of the accused/appellants were recorded in his presence and hearing and contained full and true account of the statements made by them. No doubt statements under section 342, Cr.P.C. Are available on record but the certificates appended thereto are not in the handwriting of the Presiding Officer. It appears that the learned Judge has put his signatures at four places without recording the statement in accordance with law. Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful. Non-compliance of provisions regarding examination of accused under section 342, Cr.P.C.
And giving of certificates by the trial Judge in his handwriting are not curable and the same is an illegality not irregularity. In view of the above position we would not further comment upon the merits of this case and to dilate upon the other contentions of the learned counsel at this stage which may prejudice the case of either of the parties.
11. We are 'of the view that the miscarriage of justice has resulted on account of abovementioned illegalities: That being the position, there is no option but to set aside the convictions and sentences of the appellants and send back the case to the trial Court for retrial from the stage of recording statements of appellants under section 342, Cr.P.C. And writing of a proper judgment in accordance with law. The learned Special Judge/Sessions Judge, Nushki is directed to dispose of the case as soon as possible. The record since received be sent back to the trial Court immediately.