MUHAMMAD AMIN Versus STATE

RIAZ AHMAD, J.‑ ‑The petitioner Muhammad Amin son of Mohabat Khan and Muhammad Akram son of Muhammad Ashraf have invoked the revisional jurisdiction of this Court to assail their conviction and sentence on a charge under section 325 read with section 34, P.P.C

The petitioners were tried alongwith acquitted co‑accused namely Amin son of Fazil Ahmad and Muhammad Iqbal for having caused the injuries with sticks to Muhammad Ashraf, as a result of which, the leg of Muhammad Ashraf was fractured. The occurrence in this case took place at 2 p.m., on 21‑7‑1982 on the Museum Road near Gate No. 2 Taxila. The prosecution case in brief is that on the day of occurrence, Sultar complainant was grazing; his cattle on the Museum Road, when Muhammad Ashraf and Ashiq passed near from the said road, while proceedings towards Taxila. On seeing the complainant, they stopped and started talking with each other. In the meanwhile, Muhammad lqbal and Muhammad Akram and Muhammad Amin and Amin son of Fazil Ahmad armed with sticks also arrived. Muhammad Iqbal raised Lalkar to break the legs of Ashraf and thereupon the attack was launched by the petitioners and the acquitted co‑accused. The first blow was given by Muhammad Amin on the head of Ashraf, as a result of which, he fell and then Muhammad lqbal, Muhammad Akram and Muhammad Amin one after the other inflicted sticks blows fracturing the leg of Ashraf. The occurrence was also seen by one Ashiq. On the alarm raised, the petitioner fled from the scene of occurrence.

2. The complainant Sultan on his way to the Police Post met Fazil‑ur?Rehman, A.S.I., who recorded his statement Exh. P.A. On the basis of which a case under section 325 read with section 34, P.P.C. was registered vide F.I.R. Exh. P.A/ 1.

During the investigation, Muhammad Amin and Muhammad Iqbal were found innocent by the police and they also led documentary evidence to establish their plea of alibi. Their name was placed in column No. 2. The learned trial Magistrate summoned them during the trial and after examination of the documentary evidence and oral testimony, Muhammad Amin and Muhammad Iqbal were acquitted. The petitioners were found guilty on the charge and they were sentenced to suffer R.I. for a period of three years each and to pay a fine of Rs.1,000 each or in default to suffer further R.I. for a period of three months.

3. Aggrieved by their conviction, the petitioners filed an appeal, but the same was dismissed by the learned Additional Sessions Judge, Rawalpindi vide his judgment, dated 17‑6‑1985.

4. This revision came up for hearing on 10‑8‑1985 and the learned counsel on behalf of the petitioners vehemently contended that the trial of the petitioner stands vitiated, because the statements of the petitioners as recorded by the Magistrate did not contain a certificate as required under section 364, Cr.P.C., according to which the trial Magistrate has to certify, under his own hand, that the examination of the accused took place in his presence and the record contains full and true account of his statement. It was also argued that such omission on the part of the learned trial Magistrate amounted to an illegality justifying the remand of the case to the learned trial Magistrate to proceed with the trial from the stage where the certificate was required to be given. In this behalf reliance was placed upon three judgments delivered by this Court reported as a Muhammad Inayat and others v. The State 1985 P Cr. L J 469 and Munshi v. The State 1985 P Cr. L J 1967 and Muhammad Rafiq v. The State 1985 P Cr.,L J 1985.

5. Our learned brother A.S. Salam, J. examined these contentions and also the ratio of these cases. Our learned brother expressed the view that the formal non‑compliance with the requirements of recording the statement by a Magistrate under section 364, Cr.P.C. would not cause any prejudice to the accused, but in view of the judgments cited at the Bar, holding contrary view, thought it desirable, that the determination of this question be placed before a larger Bench for authoritative pronouncement anti hence this case has been laid before us.

6. We have carefully considered the contentions raised and the judgments cited at the Bar. However, in the meanwhile our learned brother Q.S. Ikram, J. examined this very question at the Multan Bench of this Court in a case reported as Rizwan v. The State P L D 1986 Lah. 222. Our learned brother Q.S. Ikram J, examined all the relevant cases on the subject and opined that the absence/omission of certificate required under section 364, Cr.P.C. cannot vitiate the trial, unless it could be shown that prejudice had been caused to the accused.

7. After careful examination of all the case law and provisions of statute, we are of the view that the determination of this question rest upon the interpretation of section 537, Cr.P.C. The said provision reads as under:‑‑

"Subject to the provisions hereinbefore, contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account:‑‑

(a) of any error, omission or irregularity in the complainant, report by police officer under section 173, summons, warrant charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or

(b) of any error, omission irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice. .

Explanation.‑‑In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier state in the proceedings). ??????????

8. The perusal of the above provision would clearly show that every error, omission and irregularity in the mode of trial cannot vitiate the trial, unless it can be shown, that such error had prejudiced the accused. In determining the question of prejudice again the explanation to section has to be kept in view. The intention of the law‑maker is clear that even in a case where the prejudice is pleaded, the Court has to examine, whether at the earliest possible such objection with regard to such prejudice was raised or not. We are fortified in this view by various judgments of the Supreme Court of Pakistan. In the case reported as Shamim v. State P L D 1966 S C 178. It was observed that failure to examine the complainant before issuing process was a curable irregularity, unless it could be shown that some prejudice was caused to the accused. Similarly, in another case reported as Wahid Bakhsh v. State 1974 S C M R 219, it was held that despite the fact, that no specific question was put to the accused with regard to the dying declaration (F.I.R.) yet irregularity or omission had not vitiated the proceedings, and such omission was curable under section 537, Cr.P.C., because the accused was represented by a counsel and the accused had thus not been taken by surprise. It was further observed that even if such F.I.R. was omitted ample evidence existed on the record to justify the conviction. Similarly, in a case reported as Lalan v. Crown P L D 1955 F C 132, it was held by the Federal Court of Pakistan that failure to put a question to the accused during his examination under section 342, Cr.P.C. would not vitiate the proceedings and the irregularity was curable, because in the said case, the question had been put to the advocate of the accused. Yet in another case reported as Abdul Wahab v. Crown P L D 1955 F C 91, this question was dealt with, because an objection was raised with regard to the inadequacy of the examination of the accused under section 342, Cr.P.C. After examining the circumstances of the said case, the Court observed, that since accused was a literate person, and was capable of knowing the nature of the proceedings against him and also aware of the prosecution case. Hence, no miscarriage of justice had taken place and, therefore, inadequate examination was curable under section 537. Cr.P.C. The Indian Supreme Court had dealt with the interpretation of section 537. Cr.P.C. in the judgment reported as Moseb Kaka v. State P L D 1956 S C (India) 303, an objection was raised, with regard to inadequate compliance of section 342, Cr.P.C. It was observed by the Indian Supreme Court. that a judgment is not to be set aside merely by reason of inadequate compliance with section 342, Cr.P.C., unless clear prejudice had been shown. It was further observed, that where an accused is represented by a counsel at the trial and in appeal, it is up to the accused or his counsel in such cases to satisfy the Court, that such inadequate examination has resulted into miscarriage of justice. It was further observed that if the counsel is unable to say that his client, in fact had been prejudiced and if all that he could urge is that, there was a possibility of prejudice, that would not be enough to hold that the trial stands vitiated.

In the case referred to above reported as Shamim v. State P L D 1966 S C 178 the Supreme Court of Pakistan had the occasion to examine the explanation to section 537, Cr.P.C. It was observed that the explanation to section 537, Cr.P.C. says that in determining whether the error or omission or irregularity in any proceedings had occasioned a failure of justice, the Court shall have regard to the fact. whether such objection could or should have been raised at the earliest stage in the proceedings. In the aforesaid case, the objection as to the illegality of the process was not taken till the complainant and some other witnesses had been examined in presence of the accused and a charge had been framed against him. The objection was merely mentioned in a transfer application referred to the District Magistrate and later in the High Court. The transfer application succeeded and the case was sent to another Magistrate for trial. It was observed that the objection raised for the first time had no bearing upon the issue inasmuch as, the appellant had the opportunity to cross‑examine the complainant and his witnesses and it did not therefore, appear, that he had been in any way prejudice in his defence. In Muhammad Nawaz v. State PLD 1956 S C 440, the objection as to the framing of defective charge was not raised during trial and hence in appeal, it was observed that apart from the failure to raise such objection at the earliest possible opportunity, the facts of the case also did not disclose any prejudice.

9. The underlying idea for making a reference to all these cases is to elucidate the principle to decide the fate of this and any error, omission irregularity in the mode of the trial in the light of the principles laid down in section 537, Cr.P.C. ????????

10. To sum up, the crux of the issue, in such like cases is the questions of prejudice. It is, therefore, mandatory for the petitioners to manifest that in fact they had been prejudiced in their defence resulting to mis?carriage of justice and not that there was any possibility of such prejudice.

11. Now we will advert to the case decided by this Court and relied upon by the petitioners. In the first case reported as Muhammad Inayat v. The State 1985 P Cr. L J 469, the examination of the accused was found defective and not adequate, it had not been written by the trial Magistrate and no question of recovery of weapon was put to the accused and it also did not contain the requisite certificate. Besides other irregularities were also noted in the dictation and the signing of the judgment of the trial Court. In the circumstances of the case, it was found that in fact the accused had been prejudiced causing of failure of justice.

12. In the case reported as Munshi v. State 1985 P Cr. L J 1677, the conviction had been recorded under section 354, P.P.C. and no certificate as required under section 364, Cr.P.C. had been appended. In the case of Abdul Ghafoor v. State 1985 P Cr. L J 877 and in the case reported as Saeed Ahmad Khan v. State 1985 P Cr. L J 2489, the petitioners were convicted bi Special Judge Anti‑Corruption. In the case of Abdul Ghafoor and Saeed Ahmad Khan (ibid), the requisite certificate under section 364, Cr.P.C. had been appended, but .was not in the hand of the trial Court but a stamp made for the said purpose had been used. As already noticed, in the case of Munshi and Abdul Ghafoor. no certificate existed but in the other three cases the requisite certificates were not there, hence the learned Single Judge set aside the conviction and remanded the case for re‑trial. The learned Single Judge held the omission as illegality and not a irregularity curable under section 537, Cr.P.C. It is further important to note that the concept of irregularity or illegality was not argued at length nor the interpretation of section 537, Cr.P.C. and the principles underlying were canvassed before the learned Judge. After careful examination of the principle and applying criteria laid down under section 537, Cr.P.C. we hold that mere omission to append a certificate as required under section 364, Cr.P.C. would not cause any miscarriage of justice of failure or justice, nor would prejudice the petitioner in any manner. We have also carefully examined the reasons advanced by our learned brother Q.S. Ikram, J. in a case reported as Rizwan v. State P L D 1986 Lah. 222. The learned Special Judge by placing reliance upon Hazrat Jamal v. State P L D 1985 S C 383 and Rehmat Ali v. State 1986 SCMR 446 observed that the failure to append a certificate as required under section 364, Cr.P.C. while examining an accused would not in any manner prejudice the under trial. After review of all these cases we also endorse the view expressed by our learned brother Q.S. Ikram, J.

13. Adverting to the facts of all these cases, we notice that the petitioners were represented by a counsel and were aware of the nature of the proceedings against them. It may be stated here that the underlying idea of the examination of an accused under section 342, Cr.P.C. is nothing but a salutary principle of natural justice, that the person should be afforded an opportunity to explain the evidence adduced against him. After careful perusal of the record, we are of the view that in no manner, the petitioners were prejudiced in this case. No objection was raised by them about the alleged defective framing of the charge, or their inadequate examination under section 342, Cr.P.C. We have also noticed that no objection in this behalf was raised even at the appellate stage. This objection is being raised for the first time before this Court, in course of hearing of this revision petition. After anxious consideration, we hold that there is no substance in this contention and the same is hereby repelled. Accordingly, the reference made to us is answered in the terms noted above.

S.G.D./M‑190/L ????????????????????????????????????????????????????????????????????? Order accordingly.