MUSHTAQ AHMAD Versus THE STATE

1. This criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption, Rahimyar Khan, whereby he on 5-2-1985 convicted Mushtaq Ahmad and Muhammad Akram appellants under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them as under:--

2. Under section 161. P.P.C : =Six months' R.I. and a fine of Rs.200 each, in default thereof one month R.I. each.

3. Under section 5(21,/47 .--Six months' R.I. and a fine of Rs.300 each, in default thereof one month R.I. each, with the direction that the sentences shall run concurrently.

2. Since after hearing the learned counsel for the parties, I feel inclined to set aside the conviction and sentence of the appellants and send back the case to the trial Court on account of legal infirmity in recording statements of the appellants under section 342, Cr.P.C., so I need not set out the facts in detail and enter into the merits of the case. I find that no certificate as required under subsection (2) of section 364, Cr.P.C. to the effect that the statement of the A accused was taken in their presence and hearing and that the record contains a full and true account of the statements made by them, was given by the trial Court. Furthermore, statements of the appellants Exh.P.W.l/A and Exh.P.W.l/L made by them before the Raiding Magistrate, immediately after the raid were not put to them at the time of recording statement under section 342, Cr.P.C. I feel that the statements made by the appellants just after the occurrence were material for the just decision of the case.

4. For what has been said above, the convictions and sentences awarded to the appellants by the trial Court are set aside and the case is sent back to the trial Court for re-trial from the stage of examination under section 342, Cr.P.C. The appellants will remain on bail during trial.

5. S.G.D./M/881/L

6. Retrial ordered.