1998 PLP 288 (MLD)

This Jail Criminal Appeal is directed against judgment dated 22‑4‑1997 delivered by the learned Additional Sessions Judge, Peshawar whereby he convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to 10 years' R.I., 10 stripes and a fine of Rs.8,000 in default of payment whereof to undergo R.I. for one more year. The appellant was also allowed the benefit of section 382‑B, Cr.P.C.

2. According to the prosecution ' Mukhbari' was made that the appellant and the co‑accused Akhtar Gul would carry heroin for delivery to some one. Accordingly ' Nakkah' was laid under the supervision of P. W .4 Raza Khan by the narcotics Police Station near Government High School, Pabbi on 14‑8‑1994. At about 2‑30 p.m. the appellant alongwith Akhtar Gul co‑accused who were coming by foot were pointed out by the informer as the persons carrying heroin. The two of them were apprehended and from the 'Chadar' which the appellant was carrying under his arm pit was recovered a shopping bag which contained three packets of heroin respectively weighing 690 grams, 600 grams and 590 grams. The appellant and his co‑accused were arrested and out of the three packets sample of one gram each was made into three parcels and properly sealed. The remaining contents of the three recovered packets were then made into one packet which was separately sealed. After the investigation the challan was submitted in the Court.

3. The prosecution in support of its case produced 4 witnesses P. W .1 Waseehullah, Inspector Narcotics who recorded the formal F.I.R. Exh.PA on the basis of Murasala of P. W.4 Exh.PA/1: P.W.2 Nisar Gul is the Reader of the Magistrate Mian Muhammad Salim who had recorded the confessional statement of the appellant and Akhtar Gul co‑accused. This witness was produced to prove the recording of confessional statement by Mian Muhammad Salim, Magistrate as the latter had in the meanwhile died; P.W.3 Muzaffar Khan, H.C. is the marginal witness of the recovery memo. of recovery of the heroin from the possession of the appellant; and P.W.4 Raza Khan is the complainant who wrote the Murasala Exh.PA/1 and caused the recovery of heroin from possession of the appellant, arrested the appellant and co‑accused, prepared the recovery memo. Exh. P.C., made the parcel of the samples and held the further investigation. S.W‑1 Muhammad Ibrahim, H.C. took the warrants of Fayyaz co- accused and Malang absconder accused.

4. According to confessional statements Malang absconder had handed over heroin to the appellant with a direction to deliver it to Fayyaz co‑accused who was to pay Rs.1,500 as the remuneration for carrying the heroin.

5. On the conclusion of the trial the statements of all the three accused were recorded under section 342, Cr.P.C. The accused denied the allegations and asserted that the case against them is false and concocted.

6. The learned counsel appearing on behalf of the appellant mainly contended that the non‑compliance of the provisions of section 364, Cr.P.C. in recording the statement of the appellant under section 342, Cr.P.C. has vitiated the trial. In support of this contention, he has relied upon Mst. Khial Meena and another v. The State reported as 1997 PCr.LJ 539.

7. The other main contention raised on behalf of the appellant was that the recovery having been made on 14‑8‑1994 and the parcel of samples also having been made on the same day these were belatedly sent to the Chemical Examiner on 26‑9‑1994 which were received by him on 27‑9‑1994 but there is no explanation afforded about this delay in sending the parcels of samples to the Chemical Examiner nor it has been shown that they were kept in safe custody. It was submitted that this casts a serious doubt as to the recovery and the appellant is entitled to be acquitted. He relied in this regard on Nazir Ahmad v. The state 1993 PCr.LJ 217 and Muhammad Arif v. The state 1993 PCr.LJ 1963.

8. On the other hand the learned counsel appearing for the contended that though the delay in sending the parcels to the Chemical Examiner is there but it does not affect the case of prosecution as neither the tampering with of the parcels has been asserted nor can it be established from the record as the same were received by the Chemical Examiner with intact seals thereon.

9. As regards the non‑compliance of section 364, Cr.P.C. it was contended by the learned counsel for the State that this is only an omission which is liable to be ignored. He further submitted that on this ground the case can only be remanded for trial afresh, to which he has no objection.

10. Having given consideration to the respective contentions raised on behalf of the appellant and the State I am of the view that the first contention of the learned counsel for appellant has force. The certification required to be made under section 364, Cr.P.C. has to be in the manner prescribed as provided by subsection (2) thereof. The. statements of the appellant and the co‑accused recorded under section 342, Cr.P.C. by the trial Court manifestly show that the certification is not in the manner prescribed. It has been consistently held by this Court that non compliance of the provisions of section 364, Cr.P.C. is not an irregularity which is curable and that it is incumbent on the Courts to comply with the said provision in its strict sense. This difficulty has been felt even by the learned counsel for the State who has conceded that the case is liable to be remanded.

11. Before parting with the case, I must observe that some of the trial Courts are not conducting the trials with due care and diligence. The manner of conduct of proceedings at times shows the causal manner of dealing with cases which is definitely unbecoming of a judicial office and definitely not conducive to effectual dispensation of justice. Section 364(2) in unambiguous terms requires and mandates that the trial Court after recording the statement of the accused under section 342, Cr.P.C. has to certify under its own hand in the manner prescribed that the examination was taken in his presence and hearing and that the record contains a full and true record of the statement made by the accused. I am anguished to see that in the instant case and in a number of other cases e.g. Jail Criminal Appeal No.197/I of 1996, Mst. Khial Meena and another v. The State, the Trial Courts concerned did not abide by the dictate of section 364(2), Cr.P.C. while recording the statement of the accused under section 342, Cr.P.C. as the necessary certification as mentioned above had not been made by the Court concerned under the statement of the accused. The' proceedings of the Trial Court, thus, stood vitiated inasmuch as non‑compliance of the mandatory provision of law viz. section 364(2), Cr.P.C, is not a mere irregularity which is curable but is an illegality which is not curable. The obvious which follows from this neglect is that the cases have to be remanded for adjudication afresh. This not only adds to the agony of the accused but is also a source of accumulation of cases before the Trial Courts and of the increase of pendency in the appellate Courts. Such a position cannot be countenanced and must be forthwith remedied. I would, therefore, direct the Registrar of this Court to write to the Registar of the Peshawar High Court to bring this serious lapse being committed by the Trial Courts to the notice of the learned Chief Justice of the Peshawar High Court for issuance of appropriate directions to the subordinate Courts as may be deemed fit in this regard.

13. In view of the foregoing discussion there is no escape from allowing this appeal. Resultantly, this appeal is allowed and the case is remanded to the Trial Court for adjudication afresh after taking fresh proceedings from the stage of recording the statements of the accused under section 342, Cr.P.C. N. H. Q./1150/FSC Case remanded.