1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal under section 48 of the Control of Narcotics Substances Act, 1997 (hereinafter referred to as the C.N.S. Act) is directed against the judgment, dated 6-4-2000, passed by the learned Special Judge (Narcotics), Sukkur, whereby the appellant has been convicted under section 9(c) of the C.N.S. Act and sentenced to suffer R.I. For 14 years and to pay fine of Rs, 10,00,000 (Rupees one million only) and in default whereof to undergo further R.I.
2. For 5 years.
3. ' The prosecution case is that on 1-6-1998, the appellant was arrested by Inspector Gulzar Ali Shaikh, S.H.O. 'A' Section Police Station, Sukkur, from General Bus Stand, Sukkur and 3 Kgs. Of Charas was secured from his possession. The Investigating Officer sealed about 500 Grams of Charas in one packet as sample for sending to the Chemical Examiner, Sub-Laboratory, Sukkur at Rohri, who issued certificate stating that the substance contained in the parcel was not Charas. The remaining Charas was sealed in another packet, which was sent to Court as case property. Charge was framed on 19-8-1999 and the accused/appellant pleaded not guilty to the charge. On 16-9- 1999 P.W.1, A.S.I. Ghanzafar Ali Shah was examined by the prosecution. This witness fully supported the securing of Charas weighing 3 Kgs. From the appellant. In examination-in-chief, he stated that he is an experienced Police Officer and can say with certainty if any substance is Charas, or not from its smell. He was shown 5 slabs of Charas in Court after opening the sealed packet in Court and the sample sent back by Chemical Examiner. He stated that the first packet article-A, which contained 5 slabs weighing about 2.5 Kgs. Was Charas while the second packet which contained sample sent back by Chemical Examiner was not the same stuff, which was sealed in his presence and sent to the Chemical Examiner. Both the packets were thereafter re-sealed in the Court in presence of appellant and his Advocate. On this date the Special Public Prosecutor complained that in this case also the Chemical Examiner, Doctor Shahabuddin Shaikh has sent negative report and has reported that the stuff sent was not Charas. He further complained that the Chemical Examiner Rohri, Doctor Shahabuddin Shaikh was inhabit of changing the Narcotic substances sent to him for Chemical Examination on receiving illegal gratification. The learned trial Court thereafter sent the packets containing sample returned by Chemical Examiner, Rohri and the packet containing remaining Nartocitc substance to Chemical Examiner Chemical Laboratory, Karachi.
4. The learned Trial Court made the following order:--- "S.P.P. Points out that in this case also the Chemical Examiner Dr. Shahabuddin Shaikh has sent negative report and has reported that the stuff sent was not Charas. He points out that there are several complaints against this Doctor that the people of accused approach him and after giving him illegal gratification get the report of their choice. I have also received such reports from Magistrates of this District and from other sources that this Doctor does not enjoy reputation of integrity and changes the reports so that the accused persons involved in Narcotic cases could get their acquittal from the Courts on the basis of such reports. S.P.P. Requests that the samples as well as remaining case property of this case which is available in Court be sent to the Chemical Examiner, Chemical Laboratory at Karachi. According to him, the report is doubtful and has been issued with mala fide intention so that the accused could get acquittal from the Court. The case property as well as samples sent by the Chemical Examiner were in sealed condition which were opened in Court and shown to the witness A.S.I. Ghazanfar Ali, who is present and examined today.
5. The sample seems to be a soap and the remaining property is five (5) black slabs and apparently it is Charas. Both these properties viz sample as well as remaining case property are sealed separately in Court and be sent to the Chemical Examiner, Chemical Laboratory at Karachi with letter through Record-Keeper of this Court for examination and report. The report of Chemical Examiner Rohri be kept in safe custody. Also issue summons to him, as Court witness, for recording his evidence under the peculiar circumstances of the case."
6. ' The letter written by Trial Court to the Chemical Examiner, Karachi is reproduced below:--- "To, ' The Chemical Examiner, ' Chemical Laboratory, Government of Sindh, Karachi.
7. Subject: EXAMINATION OF THE CASE PROPERTY INVOLVED IN CASE NO. 31 OF 1998 (C.R. NO. 91/98 OF P.S. "A" SECTION SUKKUR.
8. ' Whereas in the above crime dispute has arisen over the report sent by the Chemical Examiner, Sukkur at Rohri, therefore, I am sending you the samples as well as case property duly sealed, through Mr. Khalid Sultan Siddiqui Record-keeper of this Court alongwith two parcels.
9. ' You are hereby directed to examine the abovementioned property of the said crime on top priority basis and submit your report directly to this Court on or before 2-10-1999.
10. (Agha Rafiq Ahmed Khan), Sessions Judge/Special Judge, Sukkur."
11. ' On 2-10-1999 the report of Chemical Examiner, Karachi was received, which was in affirmative.
12. Thereafter, evidence of P.W.2 Inspector Gulzar Ali Shaikh, the Investigating Officer was recorded on 27-10-1999, who produced the FIR., affirmed that the Mashirnama of arrest and recovery Exh. 7 produced by A.S.-I. Ghazanfar Ali Shah was the same, which was prepared by him and further produced the First Chemical Examiner's Report Exh. 13 and second Chemical Examiner's Report Exh.
14. Thereafter, the prosecution closed its side and the learned Trial Court examined Court witnesses No,1 Khalid Sultan Record-Keeper Sessions Court, Sukkur, Exh. 16, who deposed that he had taken the sample and the property in sealed condition to the Chemical Examiner, Karachi and had brought the same in sealed condition after examination by the Chemical Examiner, -alongwith the Chemical Examiner's Report. Thereafter accused/ appellant Muneer Ahmed was examined under section 342, Cr.P.C. Doctor Shahabuddin Chemical Examiner, Sukkur at Rohri was examined as Court Witness No,2 Exh.
9. He deposed that he received 481 grams of material said to be Charas from A' Section Police Station, in sealed condition and had conducted examination thereby consuming 25 grams material. He further deposed that he issued the report Exh. 13 and sent the remaining material back to the Police Station. In cross-examination he denied the suggestion that he changed the actual Charas sent by police and had put some other material the packet. He denied that he has mixed up with Drug peddlers and issues false reports by changing the properties. He denied that he was approached by the accused party and, therefore, he gave false report. He further denied suggestion that he was being financed by Drug-peddlers for changing the property and issuing false report. . ' Accused/appellant examined himself on oath as well as under section 340(2), Cr.P.C. In his statement under section 342, Cr.P.C. He had stated that he was apprehended near Bus Stop, while he was going in Rikshaw. He denied the recovery of 3 Kgs. Of Charas from his possession. He denied that he got the Charas, sent to the Chemical Examiner Rohri changed. He further stated as follows:- -- "Sir, I am innocent and have been falsely implicated by the police in this case. Nothing was recovered from me. I am doing Embroidery work at Lahore and used to bring pairs of clothes to Sukkur for selling the same. On the day of alleged incident I had come by Bus from Lahore and was going in Rikshaw alongwith material when I was apprehended by two police men who came on motorcycle. They thereafter forcibly brought me at Police Station ' A' Section, Sukkur. I had also sold clothes of embroidery to Police Staff of ' A' Section and since I used to demand money I was involved in this false case. Nothing was recovered from me."
13. ' In his statement on oath under section 340(2), Cr.P.C. He stated that he was doing embroidery work at Lahore from where he used to bring the cloth to Sukkur for sale. He further stated that he used to supply the same to Fine Tailor Master and other shopkeepers from whom he used to receive orders. On the day of incident he was going to Fine Tailor Master in Rikshaw. He had 12 pairs of cloths and Rs, 5,238. On the way two police-men on motorcycle stopped his Rickshaw and took him to Police Chowki from where one A.S.I. Took him to 'A' Section Police Station and told the S.H.O.
14. That Charas was recovered from him. He was thereafter challaned to face trial. He stated that he was innocent. No defence witness was examined by the appellant.
15. ' The Trial Court then heard the learned S.P.P. For the State and Mr. Maqbool Ahmed Awan, Advocate for the appellant. Following points for determination were framed:---
(1) Whether on 1-6-1998 at 3.30 p.m. At General Bux Stand Sukkur Police Inspector, Gulzar Ali Shaikh of ' A' Section Police Station Sukkur secured (3) Kilogrammes Charas from the possession of accused in presence of mashirs?
(2) Whether the accused is guilty for the offence, for which he is charged?
16. ' The learned Trial Court decided the Point No,1 in affirmative and while deciding Point No,2 held that the accused was found guilty for the offence punishable under section 9(c) of the C.N.S. Act. The Trial Court convicted and sentenced the appellant as narrated in the earlier part of the judgment.
17. The Secretary Government of Sindh Health Department was directed- to conduct enquiry against Chemical Examiner Doctor Shahabuddin Shaikh, who according to the learned Trial Court favoured the accused and issued negative report.
18. ' Being aggrieved with the conviction and sentence as above, the appellant has preferred this appeal before us.
19. ' We have heard Mr. Maqbool Ahmed Awan, learned counsel for the appellant and Mr. Faizullah Korai learned S.P.P. For the State.
20. ' The learned counsel for the appellant has not assailed the finding of the Trial Court on the point of arrest of appellant and recovery of Charas from him. He addressed arguments on legal and technical aspects only. Thus the finding of fact by the trial Court has gone unassailed and unchallenged.
21. ' The first objection raised by the learned counsel for the appellant is that when a negative report was received from Chemical Examiner Rohri. The learned trial Court should have believed the same and judgment of acquittal ought to have been given. Replying to the objections it has been contended by the learned S.P.P. That there were general complaints against the Chemical Examiner, Rohri, that he has mixed-up with Drug-peddlers and on receiving huge amount by way of illegal gratification, he was indulged in changing in material sent to him and was issuing false and fake certificates. He has further submitted that the Courts are not supposed to act blindly and mechanically but to administer justice by excising jurisdiction vested in them looking to the facts and circumstances of each case. He has, therefore, submitted that the learned Trial Court acted perfectly within its jurisdiction and in the aid of justice by sending the substance received back from Chemical Examiner, Rohri and the remaining substance duly sealed and lying in the custody of the Court to the Chemical Examiner, Karachi for satisfying itself about the nature of substance recovered from the accused.
22. ' In order to appreciate the respective contentions of the learned Advocates and the justification on the part of the Trial Court in sending the sealed packets to the Chemical Examiner, Karachi, we have very carefully examined the material available on record. P.W.1, A.S.I. Ghazanfar Ali Shah has deposed that the packet, which was received hack from the Chemical Examiner. Rohri did not contain the same stuff, which was sealed in his presence and was sent to Chemical Examiner. The Investigating Officer Inspector Gulzar Ali Shah deposed in his examinationin-chief that the packet containing sample, which was sent to Chemical Examiner Rohri contained Charas and the packet, which has been sent back by Chemical Examiner, Rohri is not the same, which was sent by him to the Chemical Examiner. He stated that the Chemical Examiner has changed the Charas and issued false report just to save the accused. He further stated that the cloth in which the sample was returned by the Chemical Examiner, does not bear his signature and the signatures of the mashirs.
23. He further stated that the packet, which contains remaining Charas, which was sent back by Chemical Examiner, Karachi is the same and it bears his signature as well as the signatures of the mashirs. In cross-examination made by Mr. Maqbool Ahmed Awan a very senior Advocate practicing at Sukkur, the statement of Investigating Officer, that the Chemical Examiner has changed the Charas and the cloth containing the sample has gone unchallenged. Thus, the prosecution case that the Chemical Examiner Rohri changed the material sent to him remains unassailed. In order to ascertain the fact further, we have very carefully examined both the Chemical Examiners Reports Exhs.13 and 14. In the Chemical Examiner's Report Exh. 13 issued by Chemical Examiner, Rohri it is stated under the caption "copy of the label on the parcel" that there were signatures of two mashirs and Investigating Officers on the said packet. When the statement of Investigating Officer to the effect that the sample, which was returned by Chemical Examiner Rohri was contained in a cloth, which did not bear signatures of mashirs and Investigating Officer, is considered, with the contents of Chemical Examiner's Report, Rohri, we find that Chemical Examiner, Rohri has changed the cloth of parcel which he was not supposed to do. A perusal of the Chemical Examiner's Report Exh. 14 shows that the material which was contained in sample packet was giving smell like 'soap. The colour of said material was yellowish brown while the other packet contained 5 greenish brown semi-soft slabs with smell like Charas. There is another discrepancy which proves the prosecution allegation against the Chemical Examiner Rohri. According to the report of Chemical Examiner Rohri Exh. 13 the net weight of substance received by him was 481 grams. He consumed 25 grams of material and returned the remaining material to the Police Station A' Section, Sukkur. However, the Chemical Examiner's Report from Karachi shows that net weight of the contents of the sample packet was 290 grams only. The Chemical Examiner Rohri according to his own report had consumed 25 grams of material out of 481 grams. Thus, the sample packet ought to have contained 456 grams but the said packet contained a substance weighing 290 grams only.
24. ' So far the material sent to Chemical Examiner, Karachi by the Court is concerned, no illegality has been pointed out. The learned Trial Court has acted within its jurisdiction and in the interest and proper administration of justice to which no exception can be takcen. If some unscrupulous person and particularly public servants and more particularly, the expert starts indulging in the activities leading to the defeating of justice, the Courts shall always be vigilant in keeping the stream of justice undulated and the fountain of the administration of justice clean from every dirt and filth.
25. We are persuaded to agree with the submissions of the learned S.P.P. That the Chemical Examiner Rohri was enjoying bad reputation, for the further reason that the Federal ' Government was ultimately compelled to issue Notification dated 6-1-2000, published in the Gazette of Pakistan Extraordinary Part-2 on 11-1-2000, specifying the laboratories for the purpose of C.N.S. Act, excluding the Chemical Examiner, Lab., Sukkur at Rohri. The Notification reads as follows:- - "S.R.O. 4(1)/2000, dated 6-1-2000. In exercise of the powers conferred by section 34 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleased to notify the following laboratories to be the Federal Narcotic Testing Laboratories for the purposes of the said Act, namely:---
(1) Drug Testing Laboratory Sindh, M.A. Jinnah Road, Opposite Allah Wallah Market, Karachi; and
(2) Government Public Health Laboratory Quetta."
26. ' For the foregoing reasons we are of the considered opinion that the Trial Court very rightly sent the remaining quantity of Charas lying with it in sealed condition to Chemical Examiner, Karachi and has placed reliance on it for awarding conviction and sentence to the appellant to which no exception can be taken. There is no allegation on behalf of accused that the substance lying with Court and sent to Chemical Examiner Karachi was not the same, which was recovered from the accused/appellant. It has not been contended that there was any possibility of change of the substance while in custody of Court. The objection raised by the learned counsel for the appellant is without any force and is repelled accordingly.
27. ' The second contention of learned counsel for the appellant is that after receiving report from Chemical Examiner, Rohri, which was in negative and report of Chemical Examiner Karachi, which was in positive the learned Trial Court ought to have amended the charge so as to reduce the quantity of the Charas to 2.5 Kgs. From 3 Kgs. Originally shown in the charge.
28. ' The learned counsel has further contended that the Trial Court has committed an illegality which vitiates the entire proceedings and, therefore, the conviction and sentence be set aside and the case be remanded back to the Trial Court for re-trial.
29. ' We do not find any substance in the contention for the reason that under section 221, Cr.P.C. a charge should state the offence with which the accused is charged, and the other particulars required to be included in the charge are the sufficient description of the offence, law and sections of the law against which the offence is said to have been committed under section 222, Cr.P.C. The charge is required to contain such particulars as to the time and place of alleged offence and the person (if any) against whom -or the thing in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. It is provided in section 225, Cr.P.C. That no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it occasioned a failure of justice. It is further provided in section 232(i), Cr.P.C. That if any appellate Court or the High Court is of the opinion that any person convicted of an offence was mislead in his defence by the absence of the charge or by any error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. The legislature has gone to the extent of providing in section 535, Cr.P.C., that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless in the opinion of the Court of appeal or revision, a failure of justice has occasioned thereby.
30. ' Now coming to the facts of this case we find that the charge has been framed on the basis of material available on record as required under section 265-D, Cr.P.C. Which provides that after perusing the police report or as the case may be, the complaint and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with trial of accused, which shall frame in writing a charge against accused. The Trial Court framed charged alleging that accused was found in possession of 3 Kgs. Of Charas and the same was secured from his possession. The charge was in accordance with the prosecution case and no amendment was required after first Chemical Examiner's Report from Chemical Examiner, Rohri for the reason that the prosecution insisted that the report of Chemical Examiner Rohri was not genuine and he had changed the stuff sent to him for examination. Subsequently the prosecution version stood established.
31. ' In addition to the above fact the learned counsel for the appellant conceded during the course of arguments that the punishment provided for possessing 2.5 Kgs. Of Charas and 3 Kgs. Of Charas is same and even if it is established that 2.5 Kgs. Of Charas was secured from accused, instead of 3 Kgs. As alleged by the prosecution it would not change either the nature of offence or the punishment provided therefor. When asked to show as to how any prejudice has been caused to accused, the learned counsel had no reply. The second contention is also without substance which is hereby rejected.
32. ' The third contention raised by the learned counsel for the appellant is that the signature of accused/appellant was not obtained on his statement under section 342, Cr.P.C. Which according to the learned counsel is ate illegality and, therefore, the case should be remanded to the Trial Court for recording statement of accused afresh and to conduct re-trial from the stage of recording statement of accused under section 342, Cr.P.C. However, the learned S.P.P. And A.A.-G.
33. Pointed out that though the signatures of accused does not appear on the English version of the statement under section 342, Cr.P.C. But signature of accused appears on Sindhi version of the statement under section 342, Cr.P.C. The learned counsel for the appellant was shown the R & Ps.
34. And after going through the Sindi version of the statement of accused under section 342, Cr.P.C. He conceded that the statement bears signature of the accused/appellant. The learned counsel thereafter gave up the objection.
35. ' The last objection raised by the learned counsel for the appellant is that the certificate appended to the statement under section 342, Cr.P.C. Is typed and signed by Trial Judge in the English version and is written in the handwriting of Reader and signed by the trial Judge in the Sindhi version.
36. Neither in English version nor Shindi version a certificate is in the handwritings of the trial Judge and, therefore, the requirement of section 364(2) has not been complied with, which provides that the 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. The learned counsel has contended that it is an illegality and, therefore, is not curable under section 537, Cr.P.C. It was submitted that on account of above illegality the proceedings from the stage of recording of statement of accused stood vitiated and, therefore, after setting aside and conviction and sentence the case should be remanded back to the trial Court for recording the statement of accused/appellant afresh under section 342, Cr.P.C. And after appending certificate as required under section 364(2), Cr.P.C. The proceedings should take place afresh. The learned counsel for the appellant was asked if any prejudice has been caused to the accused/appellant on account of certificate having been typed by the Steno on dictation of the trial Judge beneath the English version of the statement of accused and written by the Reader beneath the Sindhi version of the statement under Signature of the trial Court. He was not able to point out any prejudice to the accused/appellant. However, he persisted that since it is an illegality, therefore, even if no prejudice has been caused to the accused/appellant, it is not curable and shall have the effect of vitiating the trial from the stage of recording of statement of the accused.
37. ' On the other hand the learned A.A.-G. And S.P.P. Have contended that the substantial compliance has been made with the requirement of law by appending the certificate on English and Sindhi versions. They have contended that the perusal of order sheet, dated 1-11-1999 when the statement of the accused was recorded, shows that Mr.Maqbool Ahmed Awan, Advocate was present and in his presence statement of accused was recorded in open Court. There is no allegation that the questions were not put directly by the Trial Judge to the accused and the answers were not recorded under the dictation of the trial Judge. It is also not the case of learned counsel for the appellant that the certificates both in English and Sindhi versions were not recorded under dictation of the trial Judge and that both the English and Sindhi versions are not duly signed by the trial Judge. They have submitted that the course adopted has not caused any prejudice to the accused/appellant and even if any irregularity had been committed, it is curable under section 537, Cr.P.C.
38. ' We have carefully considered the contentions raised on behalf of the learned Advocates for the parties and have gone through the judgments produced by Mr. Maqbool Ahmed Awan in support of his contentions. Since conflicting judgments have come to our notice by different Benches of the High Courts and Federal Shariat Court, therefore, we have surveyed the case law on this point mainly from Pakistani jurisdiction and partly from Indian jurisdiction. We will consider presently the judgments on which Mr. Maqbool Ahmed Awan Advocate has placed reliance alongwith the other judgments on which we have been able to lay hand as a result of our own survey of case-law.
39. ' It is an admitted position of law that the provisions contained in section 364, Cr.P.C. Are applicable to the recording of statement of accused under section 342, Cr.P.C., therefore, we would like to first reproduce the above two sections and the relevant sections contained in Chapter-XLV, Cr.P.C.
40. Under the caption irregular proceedings;--- ' Section 342, Cr.P.C.
41. "342. Power to examine the accused.- --(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."
42. Section 364 Cr.P.C.
43. "Examination 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."
44. Section 533, Cr.P.C.
45. "533. Non-compliance with provisions of section 164 or 364.---(1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and .
46. Notwithstanding anything contained in the Evidence Act, 1872, section 9 such statement shall be admitted if the error has not injured the accused as to his defence on the merits."
47. ' Section 537, Cr.P.C.
48. "537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings.--- ' Subject to the provisions hereinbefore, contained no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal of revision on account."
49. ' The point whether non-compliance or defective compliance of the provisions contained in section 342 read with section 364, Cr.P.C. Is an illegality having the result of vitiating the trial or it is an irregularity which is not curable and has the same effect as above or it is an irregularity which is curable if no prejudice is caused to an accused person and no failure of justice has taken place, came for consideration in various judgments. In the following judgments it has been held that the non-compliance including absence of certificate required under section 364(2), Cr.P.C. At the end of the statement of accused under section 342, Cr.P.C. In the handwriting of the trial Judge is an illegality, which is not curable;---
(1) Muhammad Inayat v. State (1985 PCr.LJ 469 (Lahore)) (SB).
(2) Munshi v. State (1985 PCr.LJ 1677 (Lahore) SB.
(3) Raheel Sajid v. State 1986 PCr.LJ 1006.
(4) Fateh Khan v. State 1985 PCr.LJ 1683.
(5) Allah Ditta v. The State (1986 PCr.LJ 1987 (Lahore)) (S.B.)
(6) Sabir Raza Nadeem v. The State (1986 PCr.LJ 1948 (Lahore)) (S.B.)
(7) Bashir Ahmed Malik v. The State (1988 PCr.LJ 1693 (Karachi)) (S.B.)
(8) Kafeeluddin v: The State (1989 PCr.LJ 251) (S.B.)
(9) Ashraf Mian v. The State (1989 PCr.LJ 1079) (S.B.)
(10) Mst. Khial Meena v. The State (1997 PCr.LJ 539 (F.S.C.)) (S.B.)
(11) Abdul Samad v. The State (PLD 1986 (F.S.C.) 265) (D.B.)
(12) Muhammad Kalam v. The State (1999 MLD 55 (F.S.C.)) (D.B.)
(13) Mst. Azeema v. The State (PLD 2001.Quetta 1) (D.B.)
50. ' The judgements in which contrary view has been taken and it has been held that until and unless a prejudice is shown to have been caused to the accused and failure of justice is established, the mere omission or defect in making compliance with provisions contained in sections 342/364, Cr.P.C. Shall be treated as an irregularity curable under sections 533/537, Cr.P.C., are as follows:--- ' Indian Jurisdiction
(1) Bejoy Chand v. State AIR 1952 SC105.
(2) Ajmer Sing v. State of Punjab AIR 1953 SC 76.
(3) Tilkeshwar Singh v. State AIR 1956 SC 238.
(4) Waseem Khan v. State of U.P. AIR 1956 SC 400.
(5) Moseb Choudhry v. West Bengal State AIR 1956 SC 536.
(6) Chikkarange Gowda v. State of Masur AIR 1956 SC 731.
(7) Rana Shanker Singh v. The State of West Punjb AIR 1962 SC 1239.
51. ' Pakistani Jurisdiction.
(I) Muhammad Yakoob v. Crown PLD 1956 Lah. 174 (S.B.)
(2) Abdul Wahab v. Crown PLD 1955 Federal Court 88.
(3) Hazrat Jamal v. The State PLD 1958 SC 383 (S.B.)
(4) Muhammad Hussain v. The State PLD 1986 Lah. 34 (S.B.)
(5) Rizwan v. State PLD 1986 Lah. 222 (S.B.)
(6) Shah Nawaz v. The State PLD 1986 FSC 242 (Full Bench).
(7) Muhammad Ameen v. The State 1987 PCr.LJ 1922 Lah. (D.B.)
(8) Hakim Ali v. The State 1988 PCr.LJ 333 Lah. (S.B.)
(9) Muhammad Ashraf v. The State 1989 PCr.LJ 1803 Lah. (S.B.)
(10) Mst. Janat Bibi v. State 1992 PCr.LJ Lah. 1673 (S.B.)
(11) Abdul Reheem v. The State 1997 PCr.LJ 1274 Pesh. (D.B.)
52. ' A survey of the case law on the point under consideration shows that the judgments which a view has been taken that every noncompliance of the provisions contained under section 364, Cr.P.C.
53. While recording statement of accused under section 342, Cr.P.C. And particularly omission to append the certificate in the handwriting of trial Judge are Single Bench judgments, except the following 3 judgments;--
(1) Abdul Samad v. The State (PLD 1986 FSC 265).
(2) Muhammad Kalam v. The State (1999 MLD (FSC) 55).
(3) Mst. Azeeman v. The State (PLD 2001 Quetta 1).
54. ' A further perusal of the case-law shows that the judgments in the case of Abdul Samad v. The State was delivered by a Division Bench of Federal Shariat Court comprising Mr. Justice Gul Muhammad Khan C.J and Mr. Justice Syed Shujaat Ali Qadri. The judgment was authored by Shujaat Ali Qadri, J. In which it was held that where the Magistrate while recording statement under section 342, Cr.P.C. Has affixed his signatures but has not appended the certificate as required under section 363(3), (It appears to be a typing mistake as the relevant section is 364(2). It is an illegality. However, this point again came for consideration before a Full Bench of the Federal Shariat Court in the case of Shah Nawaz v. The State (PLD 1986 FSC 242) comprising Gul Muhammad Khan C.J., Fakhre Alam and Syed Shujaat Ali Qadri, JJ. The following objection was raised before the Full Bench; 342, Cr.P.C. Was not recorded in accordance with the mandatory provisions of section 364, Cr.P.C. As the requisite certificate was not appended by the Magistrate at the close of the statement of the accused, it being an illegality, which vitiated the trial."
55. ' The judgment was authored by Fakhre Alam, J. And was concurred by the other two Honourable Judges without any addition or difference. Thus, the judgment was unanimous. Reliance was placed before the Full Bench of Federal Shariat Court by the learned counsel for the appellant on the following judgments: ' 1985 PCr.LJ 469. 1985 PCr.LJ 1677. 1985 PCr.LJ 1985. 1985 PCr.LJ 2489.
56. ' It was observed that all the four judgments were S.B. Decisions. Another unreported decision of Federal Shariat Court in Criminal Appeal No,192/1 of 1985, decided on 6-6-1985 was also referred.
57. ' It was held by the Full Bench of the Federal Shariat Court that in all the decisions cited by the learned counsel, the attention of learned Judges, who decided those cases was not drawn to the provisions of section 533, Cr.P.C. We have already re-produced section 533, Cr.P.C., in earlier part of this judgment and, therefore, we need not to re-produce the same again. It was held by the Full Bench of Federal Shariat Court as follows:-- "A bare reading of this section makes it abundantly clear that the defect in recording statement of the accused is curable if it had not injured the accused as to his defence on the merits. The matter is not res integra, under section 537, Cr.P.C. Any omission, error or irregularity in the proceedings during trial would not render the sentence or finding passed by a competent Court to be reversed or altered if it has not occasioned a failure of justice. The learned counsel for the appellants has not been able to show that absence of certificate on the statement of the accused has prejudiced him in defence or occasioned a failure of justice."
58. ' The facts of the cited judgment were that certificates were appended with the statement of the accused by affixation of rubber stamp and not in the handwriting of Presiding Officer. It was held that the rubber stamp certificate would not be treated to be a certificate required under subsection (2) of section 364, Cr.P.C. However, it was held ultimately as follows:-- "But as observed earlier the absence of certificate on the statement of the accused recorded under section 342, Cr.P.C. Would be fatal only if it can be shown that by its omission the accused has been injured in his defence on merits and it has in fact occasioned a failure of justice. Near possibility or probability of a failure of justice is not sufficient which is also not the case of the appellant. The learned counsel has not said a word in what way by absence of certificate failure of justice has occasioned. The rubber stamp certificate was affixed on the close of the statement of the accused in presence of the accused and his counsel which is signed by the Presiding Officer but no objection was raised before the trial Court by the accused or his counsel. The explanation of section 537, Cr.P.C. Lays down that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Here no objection to the absence of certificate on the statement of the accused was taken at the trial stage, the same cannot be said to have occasioned a failure of justice so as to vitiate the proceedings."
59. ' So far the judgment of Federal Shariat Court in the case of Muhammad Kalam v. The State 1999 MLD 55, is concerned, we find that a plea was raised that non-compliance of section 364(2) (3), Cr.P.C. Is not mere irregularity which can be cured but is an illegality which is not curable,. Another plea was taken to the 'effect that the accused persons were not asked by the trial Court as to whether they would like to appear as their own witnesses and make statement on oath as provided by section 340(2), Cr.P.C. The learned Judges of Federal Shariat Court sitting in D.B.
60. Discussed to some length the objection pertaining to the omission to ask the accused persons if they want to make statement on oath under section 340(2), Cr.P.C. But the effect of second omission i.e, non-certification, required by section 364(2), Cr.P.C. Was not discussed at all. The earlier Full Bench judgment of the Federal Shariat Court in the case of Shah Nawaz v. The State (Supra) was not brought to their notice. Thus, we are of the opinion that the case was remanded by the Federal Shariat Court mainly for the omission to ask the accused if they want to make statement on oath under section 340(2), Cr.P.C. And the judgment is not an authority on the point that noncompliance of the provisions contained under section 364(2), Cr.P.C. Amounts to an illegality even if no prejudice is established to have been caused to accused persons and that the non-compliance shall render all further proceedings, and that the judgment shall be vitiated, necessitating the remand of case to the trial Court to proceed afresh from the stage of recording of statement of the accused persons. As regards the latest D.B. Judgment of Baluchistan High Court in the case of Mst. Azeeman v. The State (supra) wherein it has been held that "non- compliance of provisions regarding' examination of accused under section 342, Cr.P.C. And giving- up certificates by the trial Judge in his handwriting are not curable and the same is an illegality not irregularity," the finding has been given without reference to the provisions contained in sections 533 and 537, Cr.P.C. With all respects for our learned brothers of the Baluchistan High Court, we are of the opinion that the finding was the result of the lack of assistance to them. The judgments by the Federal Shariat Court in the case of Abdul Wahab v. Crown and by the Supreme Court in the case of Hazrat Jamal v. The State, Full Bench Judgment of Federal Shariat Court in the case of Shahnawaz v. The State D.B. Judgment by the Lahore High Court in the case of Muhammad Ameen v. The State and D.B. Judgement by Peshawar. High Court in the case of Abdul Raheem v. The State, were not cited before our learned brother. Thus, in the presence of several D.B. Judgments, Full Bench judgment of Federal Shariat Court and the judgments of Honourable Federal Court and Supreme Court of Pakistan, it is not possible for us to adhere to the view expressed by the learned D.B. Of the Baluchistan High Court in the case of Mst. Azeeman v. The State.
61. ' After careful reading of the judgments expressing conflicting views we have noted a very striking feature to the effect that in all the judgments delivered by S.B. Or D.B. Holding the view that non- compliance with the provisions contained in section 364(2), Cr.P.C. And section 342, Cr.P.C. Amount to illegality vitiating the proceedings, the opinion have been expressed without indepth examination of all the relevant provisions of law. All such judgments are very summary in nature and the view has been taken after very short discussion or no discussion at all and without considering if the omission can be treated as irregularity which is curable. There is another interesting feature that whenever the Honourable Judges expressing the view that non- compliance of the provisions contained in section 342, Cr.P.C. And section 364, Cr.P.C. Amounts to illegality have examined the issue indepth they have themselves changed their view and have recorded the contrary opinion. We would like to cite two instances in this behalf. In the case of Muhammad Inayat v. The State 1985 PCr.LJ 469 (Lahore) Qurban Sadiq Ikram, J. Held that "certificate required under section 364, Cr.P.C. Has also not been appended by the trial Magistrate after recording the statement of the accused. This is in my opinion an illegality not curable under section 537, Cr.P.C. This judgment was delivered in October, 1984. Similar point again came for consideration before the same Honourable Judge, in the case of Rizwan v. The State PLD 1986 Lahore 222 in April, 1986. In the earlier judgment the opinion was expressed just in few sentences but in the later judgment the learned Judge heard the arguments on three dates and examined the entire law including the judgments by the Honourable Supreme Court and came to the contrary conclusion. It was held that in the cases reported as 1985 PCr.LJ 877, 1985 PCr.LJ 1985 and 1985 PCr.LJ 2489, the finding was given that "to my omission is illegality and not curable irregularity," with considering the questipn whether absence of certificate required under section 364, Cr.P.C.
62. Had in fact prejudiced the defence of the accused or has occasioned the failure of justice. Mr. Justice Qurban Sadiq did not follow his own judgment in the case of Muhammad Inayat v. The State 1985 PCr.LJ 469 and held as follows:-- "I, therefore, very respectfully find myself unable to agree with the learned Judge in Chamber. The question whether omission in procedure of a trial had occasioned a failure of justice is a question of fact which must be determined before any finding about the nature of the irregularity can be given. Mere omission to append a certificate required under section 364, Cr.P.C. Would not mean that it had occasioned any failure of justice or that it had prejudiced the accused in his defence on merits. In Hazrat Jamal v. The State PLD 1958 SC (Pak.) 383, the trial Court had failed to keep memo.
63. Of the statement of the accused. It was held by their Lordships of the Supreme Court that even if such irregularity was committed, it would again be curable in so far as the accused's statement is concerned provided the error had not injured accused as to his defence on merits. In an another judgment reported as Rehmat Ali v. The State 1986 SCMR 446, the accused was not supplied copies of statements under section 161, Cr.P.C. It was held by their Lordships that 'no finding, sentence or order is to be reversed or altered unless an omission or irregularity has occasioned a failure of justice'. Although both, in Hazrat Jamal and Rehmat Ali's cases, the question of certificate under section 364, Cr.P.C. Was not involved but it was clearly held by their Lordships that such omission cannot affect the merits of the case if it has not injured the accused as to his defence on merits or has not occasioned a failure of justice.
64. ' In the instant case, the Magistrate had signed both the statements of the accused. These statements were also signed by Rizwan accused. The signatures of the accused are proof of the fact that the examination of the accused was recorded by Magistrate in his presence and hearing and that the said examination was full and true account of the statements made by the accused.
65. The trial was not held in a mode prohibited by law. It was held in accordance with the prescribed procedure. The absence/ omission of the required certificate under section 364, Cr.P.C. Was only an irregularity curable under section 537, Cr.P.C. I pointedly asked the learned counsel for the petitioner about any prejudice that might have been caused to the accused due to the absence of this certificate. He was not able to show, in any manner, that the absence of certificate had occasioned a failure of justice which, as held above, is a question of fact. This Court will not interfere unless there has been in fact a failure of justice or the accused was prejudiced in his defence on merits. The first contention on behalf of the petitioner is accordingly repelled."
66. ' Likewise in the case of Abdul Samad v. The State PLD 1986 FSC 265, Gul Muhammad Khan, C.J. And Syed Shujat Ali Qadri, J. Of the Federal Shariat Court held in one sentence that while recording statement of accused under section 342 certificate has not been appended as required under section 364, Cr.P.C. And therefore, it is an illegality. This judgment was delivered in May, 1985. But when the same learned Judges while sitting. In Full Bench in March, 1986 examined the issue elaborately in the case of Shah Nawaz v. The State PLD 1986 FSC 242 and discussed the provisions contained in sections 533 and 537, Cr.P.C. They came to the conclusion that "the absence of certificate on the statement of accused recorded under section 342, Cr.P.C. Would be fatal only if it can be shown that by its omission the accused has been injured in his defence on merits and it has in fact occasioned a failure of justice. Possibility or probability of failure of justice is not sufficient which is also not the case of the appellant. The learned counsel has not said a word in what way by the absence of certificate failure of justice has occasioned. The rubber stamp certificate was affixed on the close of the statement of the accused in the presence of the accused and his counsel, which is signed by the Presiding Officer but no objection was raised before the trial Court by the accused or his counsel. The explanation of section 537, Cr.P.C. Lays down that in determining whether any error omission or irregularity under any provisions in this Code had occasion a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Here no objection to the absence of certificate on the statement of accused was taken at the trial stage, the same cannot be said to have occasioned a failure of justice so as to vitiate the proceedings".
67. ' In a very illuminating judgment Honourable Mr. Justice Rustam. S. Sidhwa held in the case of Muhammad Hussain v. The State PLD 1986 Lahore 34, that the omission does not amount to illegality, we can do no better than to reproduce the finding which is as follows:--- "5. With regard to the second submission that no certificate, as required by section 364(2), Cr. P.0 . , was recorded by the Magistrate after recording the statements of the petitioners under section 342, Cr.P.C. The same appears to be factually correct. The only question is whether, on this basis, it can straightaway be inferred that the trial stands vitiated. Learned counsel has referred to Munshi's case (supra) Fateh Khan's case (supra) to canvass the view that where the law provides a particular procedure for doing a particular thing in a particular manner, that thing should be done compulsorily in the prescribed manner and not in any other manner. It is urged that since section 364(2), Cr.P.C. Mandatorily directed the Magistrate to certify under his own hand that the examination was taken in his presence and hearing and that the record contained a full and true account of statement made by the accused and that since the mandatory procedure was not complied with, an illegality has occurred which was vitiated the trial.
6. Of these sections which invite the application of a particular procedure for the doing of a particular thing, sections 342 and 364, Cr.P.C. May be cited as two examples, where a mandatory compliance is required. Section 342(1), Cr.P.C. Inter alia mandatorily calls upon a Magistrate for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him, to question him generally on the case after the witnesses for the prosecution have been examined and before he called on for his defence. Every error or omission amounting to non- compliance with the provisions of section 342(1), Cr.P.C. To the extent that it relates- to the examination of the accused after the prosecution has closed its case, is not treated as vitiating the trial. Upon the degree of the error or omission and upon the question whether prejudice has been or is likely to have been caused to the accused, depends the fact whether the trial stands vitiated. If any authority is required for this view, Sonafar All v. The State 1969 SCMR 461, Abdul Wahab v. The Crown PLD 1955 FC 88 and Muhammad Yakub v. The Crown (3), may be referred.
7. In respect of the violation of section 364, Cr.P.C. The same question arises, namely, as to what is the degree of the omission and whether prejudice has been or is likely to have been caused to the accused. A certificate given by the Magistrate under section 342, Cr.P.C. Lends certainty to his action that the examination has been taken in his presence and hearing and that the record contains a full and true account of the statement made to him. An omission to record the certificate is curable under section 533, Cr.P.C. This does not mean that the recording of the certificate is a mere formality.
68. ' Rather, the object of the section is to secure compulsory enforcement of section 342, Cr.P.C., the mandate wherein is specially designed to safeguard the interest of the accused to ensure his explanations coming on the record in respect of all items of evidence appearing against him in the case. But before section 533, Cr.P.C. Can be applied, the accused must place material before the appellate are revisional Court, duly supported by his affidavit, to show the relevant provision of section 164 or section 364 of the Code which has been specifically violated and what prejudice has been or is likely to have been caused to him. The accused must specifically plead how and in what manner the particular provision of section 164 or section 342, Cr.P.C. Has been violated. In the instant case, at the foot of the statements of the petitioners recorded under section 342, Cr.P.C.
69. Appears the certificate of the Magistrate to the effect that the statements were read over to the petitioners and accepted by them as correct. This obviously shows, in the absence of any affidavit to the contrary, that the statements were recorded in his presence and hearing and that the same had been heard and admitted by the petitioners to be correct. The present petitioners. Neither in their appeal before the sessions nor in their present revision petition have urged that the examination under section 342, Cr.P.C. Was not taken in their presence and hearing by the Magistrate or that the record does not contain a full and true account of the statements made by them. The only bare allegation in the present revision petition is that the Magistrate did not comply with the provisions of section 342, Cr.P.C. This bare statement is not enough, as it does not show the specific violation. In the absence of any specific assertion identifying the violation, the omission in the present case to record the certificate which appears to be the result of sheer carelessness, is curable, without resort to section 533, Cr.P.C. If any authority is required for this view, Hazrat Jamal v. The State PLD 1958 SC (Pak.) 383, may be referred. In Hazrat Jamal's case (supra), the trial Magistrate has omitted to record the certificate under section 342(3), Cr.P.C. In view of the fact that the point was not specifically taken in the petition for special leave to appeal and the Omission had not injured the accused as to his defence on merits, the same was held to be curable under section 533 of the Code, without the Magistrate being specifically called under section 533, Cr.P.C.
70. To affirm the fact that the accused had duly made the statement. In Sant Ram's case AIR 195.3 H.P.
71. 105, the statement of the accused under section 342 of the Code in the Court of the Committing Magistrate did not contain the certificate as required by section 364(2), Cr.P.C. In appeal in the High Court it was urged on behalf of the accused that before the Committing Magistrate, the accused, when confronted with his confession, had stated that he had made the same at the instance of the police and that it was incorrect, whereas the same was not so recorded by the Magistrate, who had also failed to certify the statement as required by section 342(2), Cr. P. C . And therefore, the statement was inadmissible in evidence. The High Court held that as no such allegation was made by the accused when he was examined in the Sessions Court under section 342 of he Code and as the said statement recorded by the Committing Magistrate contained a certificate that the same had been read out to the accused and admitted by him to be correct, the defect stood cured under section 533 of the Code and that the statement of the accused recorded by he Committing Magistrate was not inadmissible. Here also the High Court did not examine the Magistrate.
8. This matter can be examined from another angle. As earlier stated, section 533, Cr.P.C. Is intended to secure proper compliance of the provisions of sections 164 and 364 of the Code by calling the Magistrate to find out whether the accused did duly make the statement, as recorded.
72. The object is not to call the Magistrate to merely secure his certificate. Whereas, as in the instant case, there is no allegation, supported by an affidavit, that the statement of an accused under section 342, Cr.P.C. Has not been recorded in the presence and hearing of the Magistrate or that the statement is not a full and true account of what the accused has stated, the omission of the Magistrate to record the certificate; as required by section 364, Cr.P.C. Is nothing, but a mere procedural omission. Under section 537, Cr.P.C= no finding, sentence or order passed by a Court of competent jurisdiction can be reversed or altered on account of any omission in the proceedings during trial, unless such error or omission has, in fact, occasioned a failure of justice. Since no prejudice has been alleged, the omission to record the certificate is also curable under section 537, Cr.P.C."
73. ' The Honourable Mr. Justice Rustam S. Sidhwa went to the extent of observing that: "the fact that the certificate is recorded by use of rubber stamp does not ipso facto, imply that the Magistrate has acted mechanically. Nor when such certificate if so recorded in the handwriting of the Magistrate was ipso facto proof of his having applied his mind to the matter. Without examining various matters it is not proper to blindly condemn the recording of certificate through rubber stamp".
74. ' The issue under consideration was examined in great detail by the D.B. Of Lahore High Court comprising Honourable Mr. Justice Riaz Ahmed (as he then was) and Honourable Mr. Justice Amjad Khan in the case of Muhammad Ameen v The State (1987 PCr.LJ 1922). This Bench was specially constituted to consider the issue whether non-compliance with regard to section 364 while recording of statement, of the accused under section 342, Cr.P.C. Would cause any prejudice to the accused. After examining a large number of judgments including the two judgments of Honourable Supreme Court it was held that mere omission to append the certificates as required under section 364, Cr.P.C. Would not cause any miscarriage of justice or failure of justice, nor would prejudice the petitioner in any manner.
75. ' For the sake of'brevity we would not like to discuss each and every judgment referred to above. We are of the opinion that the controversy was laid to rest by the Honourable Supreme Court of Pakistan as far back as year 1958 in the case of Hazrat Jamal v. The State PLD 1958 SC 383, and thereafter, there was no room for holding any contrary view. However, as observed earlier in all the judgments wherein it has been held that non-compliance with the provisions contained in section 342 or section 364, Cr.P.C. Is an illegality. The Supreme Court judgment in the case of Hazarat Jamal was not brought in the notice of the Court. In other judgments expressing the contrary view, the above judgment, of the Honourable Supreme Court was considered in which it has been specifically held that failure to keep memorandum of statement of accused under section 364 is an irregularity curable under section 533, Cr.P.C.
76. ' In the end we would like to point out that when the legislature has itself enacted in section 533, Cr.P.C. That non-compliance with the provisions contained in section 164 or 364, Cr.P.C. Shall not make the statement inadmissible in evidence, provided the error has not injured the accused as to his defence on merits, it does not lie with any Court to hold that the non-compliance of the provision contained in section 364, Cr.P.C. Amounts to illegality. Section 533 has been placed by the legislature in Chapter-XLV of the Cr.P.C. Which deals with irregular proceedings. It is indicative of the intention of the legislature that non-compliance of the provisions contained in section 364 is to be treated as, irregularity and not an illegality. However, if after examining all the attending circumstances a Court comes to the conclusion that the error has injured the accused as to his defence on merits or has caused any prejudice to the accused or has occasioned a failure of justice the irregularity shall not be cured and the finding/sentence shall be reversed or altered. A collective reading of sections 533 and 537 of the Cr.P.C. Leads to the above resistable conclusion. It is established principle of interpretation of statute that a provision of law takes colour and complexion from the context in which it is used and no provisions of law is to be interpreted in isolation but in the totality of scheme contained in a particular statute.
77. ' For the foregoing reasons we are of the considered opinion that non-recording of certificate under section 364(2) by the trial Court under its own hand is a mere irregularity and since no prejudice to the accused has been established or even alleged and no objection was taken to this effect at the initial stage when the statement of the accused was recorded in the presence of a senior counsel, the irregularity is curable under section 533 read with section 537, Cr.P.C. The objection is, therefore, repelled.
78. ' No other objection has been taken assailing the impugned conviction and sentence. The impugned judgment of the trial Court is, therefore, upheld and the appeal stands dismissed.