FATEH KHAN Versus THE STATE

This criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption Sargodha whereby he on 1‑12‑1984 convicted Fateh Khan appellant under section 181, P.P.C. and sentenced him to 2 years' R.I. and a fine of 119.10,000 in default thereof further S.I. for 10 months.

2. Since after hearing the learned counsel for the appellant I feel inclined to set aside the conviction of the appellant and order retrial on account of legal infirmity in recording the statement of the accused appellant under section 342, Cr. P. C. I need not enter into the merits of the case. I find that the learned trial Court has failed to give requisite certificate under his hand to the effect that the statement of the accused‑appellant was recorded to his presence and hearing and contained full and true account of the statement made by him. No A doubt the learned trial Court has affixed a stereotype stamp on the English as well as vernacular record of the statement of the accused recorded under section 342, Cr. P. C. containing certificate to the effect that the statement of the accused was recorded in his presence and it contained a full and true account of the statement made by him, but, to my mind, the stamp so affixed cannot be treated as a certificate under the hand of the Magistrate /Judge. It is well‑settled that where law provides a procedure for doing a thing in particular manner then that thing should be done in prescribed manner and in no other manner or should not be done at all. The affixation of stamp is thus an illegality and not irregularity. That being the position, there is no option but to set aside the conviction and sentence of the appellant and send back the case to the trial Court for retrial from the stage of the examination of the accused‑appellant under section 342, Cr. P. C. Order accordingly.

M. Y. H. Case remanded.