2001 P Cr (PLP)

In case of Sikandar v. The State reported in 1990 PCr.LJ 396, in which my learned brother Qaiser Ahmed Hamidi, J: (as he then was) has dilated this point, the same is reproduced as under:‑‑ "Before I part with this judgment, I would like to observe that the learned Additional Sessions Judge has not complied with the mandatory provisions of section 364, Cr.P.C. She has not appended the requisite certificate, which is an illegality. The cases reported as Munshi v. The State 1985 PCr.LJ 1677, Muhammad Inayat and others v. The State 1985 PCr.LJ 469, Sabia Raza Nadeem v. The State 1986 PCr.LJ 1948, Allahditta v. The State 1986 PCr.LJ 1987 and Ashraf Mian v. The State 1989 PCr.LJ 1079 are direct authorities on this subject. In another authority from Peshawar High Court jurisdiction in the case of Jehandad v. The State reported in PLD 1994 Pesh.

239. This authority is based as per observation of the Honourable Supreme Court in case of Atta Muhammad v. Settlement Commissioner reported in PLD 1971 SC

61. It was held:‑‑ "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 to 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 L.ICH 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. Bothlingdon (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 much 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, demanded that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. 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. 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. " Then there is another authority in case of Arshad Mehmood v. The State reported in 1989 PCr. LJ

574. I have examined the record and proceedings of the case, which reveals that on the statements of the appellants recorded by the trial Court in token of its correctness, there is no requisite certificate under his hand to the effect that statement of the accused was recorded in his presence and hearing and contained full and true account of the statement made‑by them. Merely affixing a stereotype stamp on the statement of the accused will by no means satisfy the essential requirements of law laid down in section 364, Cr.P.C., which is mandatory in its contents and effect. Failure to comply with these requirements is not curable under section 537, Cr.P.C. The non‑compliance with provisions of section 364(2)(3), Cr.P.C. is not mere irregularity, which cannot be cured but is an illegality, which is not curable. It is an admitted fact that while recording the statements of the appellants under section 342, Cr.P.C. the trial Court has omitted to give certificate in his own handwriting that the examination of accused was made in his presence. A departure from such mandatory provisions` of law would make the trial of case of accused irregular not curable under section 537, Cr.P.C. and same has vitiated the trial. In view of such legal position, which has been conceded by the State Counsel and following the‑ dicta, the impugned judgment, dated 27‑4‑1991 is set aside and the Sessions case stated hereinabove is remanded back to the trial Court for further proceedings from the stage of statement of accused under section 342, Cr.P.C. The appellants/accused may be afforded proper opportunity to defend their case. The appellants are already on bail by this Court. The appellants may remain on bail subject to furnish fresh surety in the trial Court till the conclusion of their case. The appellants are required to appear before the trial Court on______. Resultantly, this appeal is disposed of in the terms stated hereinabove. H.B.T./A‑208/K Order accordingly.