1988 P Cr (PLP)

‑‑‑Ss. 561‑A & 439‑A‑‑Penal Code (XLV of 1860), Ss. 148, 452 & 307/149‑‑Remand of case‑‑Case remanded by Sessions Judge to Magistrate on the ground that his judgment was based on conjectures, surmises and misreading of evidence resulting in miscarriage of justice‑‑Sessions Judge did not mention which part of judgment of Magistrate was based on misreading of evidence resulting in miscarriage of justice and which portion was based on conjectures and surmises‑ Such practice adopted by Sessions Judge strongly deprecated‑‑Case sent back to the Sessions Judge for fresh decision in accordance with law. Muhammad Amin v. State 1987 P Cr. L J 1922 rel. Sarfraz Hussain for Petitioner. Shahid Hussain Kadri and Tauqirullah Shah for the State. Date of hearing: 13th December, 1987. Hakim Ali, Sain, Zafar Ali, Barkat Ali and Muhammad Boota petitioners were tried under sections 148, 452 and 307/149 of the P.P.C. by Magistrate Section 30, Sialkot, camp at Narowal, who by his judgment, dated 16‑5‑1984, acquitted them of all the charges. The complainant (respondent No. 2 herein) filed a revision petition in the Sessions Court against their acquittal, which came up for hearing before the learned Additional Sessions Judge, Sialkot. Vide judgment, dated 31‑10‑1985, he allowed the petition and remanded the case to the trial Magistrate for fresh decision 'after recording the statements of the accused'. The reasons which weighed with him for passing an order of retrial were that the judgment of the Magistrate was based on misread of evidence and it was not sustainable because the statements of the accused under section 342 of the Cr. P. C . did not bear the requisite certificates. The relevant portion of the impugned judgment is reproduced below:‑

"I have heard the learned counsel for the parties and perused the record. I have carefully gone through the evidence. The learned Magistrate does not appear to have considered the evidence of the prosecution at all. The impugned judgment is based on conjectures and surmises. The judgment is also based on misreading of evidence which resulted in miscarriage of justice and as such the order of acquittal is not sustainable in law. Even otherwise, the order of the learned trial Magistrate is not sustainable in law as the learned Magistrate has not adopted the procedure correctly. The statements of the accused which were recorded under section 342, Cr.P.C. do not bear any certificate that the same have been recorded in the presence of the learned Magistrate and that it is full and true account of their statement as it has been held in 1985 P Cr. L J at pages 1985, 1677 and

469. The statement of the accused bearing no certificate is an illegality which is not curable."

2. Learned counsel for the petitioners relies on Muhammad Amin v. State 1987 P Cr. L J 1922 to contend that omission to append a certificate as required by section 364 of the Cr.P.C. does not cause any miscarriage of justice or failure of justice. Learned counsel for the respondent does not controvert this legal position.

3. The learned Additional Sessions Judge has not mentioned which part of the judgment of the Magistrate is based on misreading of evidence resulting in miscarriage of justice and which portion is based on conjectures and surmises. It appears that by a slipshod judgment he has tried to get rid of the case before him, which course is strongly deprecated. If he was of the view that the judgment is based on misreading of evidence, he should have adverted to the evidence on the record and pointed out evidence which was misread. Similarly, he was required to detail the conjectures and surmises on which, in his view, the judgment of the trial Court was based. Actually, the learned Additional Sessions Judge does not appear to have considered the evidence at all. The impugned judgment is, therefore, set aside and the case is sent back to the learned Additional Sessions Judge for fresh decision in accordance with law, after hearing both the parties. The parties have been directed to appear before him on 20‑12‑1987.

4. As it is a very old matter, the learned Additional Sessions Judge is directed to dispose it of within two months.

5. The record be sent back immediately through special messenger. Case remanded. M.A.K./H‑45/L Case remanded.