1989 P Cr (PLP)

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), Ss.342, 364 & 537‑‑Penal Code (XLV of 1860), S.161‑‑Statement of accused recorded under S. 343, Cr.P.C. was not signed/thumb‑marked by accused as required under subsection (2) of S.364, Cr.P.C.‑‑Held, mandatory provisions of S. 364, Cr.P.C. were not complied with which amounted to an illegality and not irregularity curable under S.537, Cr.P.C. (b) Prevention of Corruption Act (II of 1947)‑‑

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Criminal Procedure Code (V of 1898), 5.342‑‑No notice of the date, month and year of the occurrence was given to accused by Trial Court while recording his statement‑‑Such omission had certainly injured accused in his defence‑‑Had accused been given notice of the time and day of occurrence, he might have raised same plea or lead evidence in defence‑‑Non‑compliance of mandatory provisions of S.342, Cr.P.C. by Trial Court amounted to an illegality and not irregularity curable under S.537, Cr.P.C.‑‑Conviction and sentence awarded to accused by Trial Court was set aside in circumstances and case was sent back for trial from the stage of recording of the statement of the accused under S.342, Cr.P.C. Malik Farrukh Mahmood for Appellant. Date of hearing: 17th December, 1988. This criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption, Bahawalpur, whereby he on 2‑11‑1988 convicted Walud Bakhsh Rana appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 9 months' R.I. and a fine of Rs.2,000 in default thereof 6 months' R.I.

2. Since after hearing the learned counsel for the parties I feel inclined to set aside the conviction and sentence of the appellant on account of legal infirmity in recording statement of the appellant under sections 342 and 364, Cr.P.C., so I need not set out the facts in detail and enter into the merits of the case. I find that A the mandatory provisions of section 364, Cr.P.C. were not complied with by the learned trial Court, inasmuch as, the statement of the accused/appellant recorded under section 342, Cr.P.C. was not got signed/thumb‑marked by the appellant, as required under subsection (2) of section 364, Cr.P.C. Furthermore, the occurrence took place on 4‑2‑1987. No notice of the date, month and year of the occurrence was given to the appellant/accused, instead he was asked as to whether he was posted as Senior Clerk in the Office of District Education Officer, Bahawalpur in the year 1984. The omission to give notice of the date of occurrence has certainly injured the accused in his defence. Had he been given notice of the time and day of the occurrence, he might have raised some plea or lead evidence in defence. Since I am of the view that the accused has been injured in his defence on account of non‑compliance of the mandatory provisions of section 364/342, Cr. P.C. by the trial Court, therefore, it is a case of illegality and not or irregularity curable under section 537, Cr.P.C.

3. For what has been said above, the conviction and sentence of the appellant awarded by the learned Special Judge Anti‑Corruption, Bahawalpur is set aside and the case is sent back to him for trial from the stage of recording of the statement of the accused under section 342, Cr.P.C. The accused/appellant will remain on bail till the conclusion of the trial. S.A./W‑55/L Retrial ordered