ALLAH RAKHIO and another vs THE STATE

ORDER

1. ' Appellants Allah Rakhio and Muhammad Ismail were convicted on 22-4-1989 by learned Special Judge, Anti-Corruption, Sukkur in Special Case No,40 of 1984 for offences under section 161/34, P.P.C.

2. Read with section 5(2) of Act II of 1947. They were awarded R.I. For one year each and to pay fine of Rs,1,000 each or in default to undergo further R.I. For 3 months.

3. ' The said judgment was assailed by filing an appeal before this Court by both the appellants. After admitting the appeal, their sentence was suspended and bail was granted to them pending the decision of this appeal. As per report from S.H.O. Of Police Station, Ghotki, appellant No,2 Muhammad Ismail has expired. Such 'statements of persons namely Ghulam Rasool son of Muhammad Ramzan and Ghulam Murtaza son of Ghulam Rasool Bhutto both resident of village Qadirpur Taluka and District Ghotki have been recorded by the concerned S.H.O. He has also obtained such death certificate from Union Council, Qadirpur. Under the circumstances this appeal stands abated against appellant No,2 Muhammad Ismail.

4. The learned counsel for the appellant Allah Rakhio at the very outset has pointed out that there is an illegality in the proceedings conducted before the learned trial Court. Referring to the statements of the accused recorded before the trial Court under section 342, Cr.P.C. The learned counsel for the appellant has pointed out that compliance of the mandatory provisions of section 364(2), Cr.P.C. Has not been made as the learned trial Judge neither appended certificate as required under the law nor obtained signature of the accused on their statements, hence failed to comply with the mandatory requirements of law. Reliance has been placed on the cases of Liaquat Ali v. The State 1990 PCr.LJ 396, Munshi v. The State 1985 PCr.LJ 1677 and Ashraf Mian v. The State 1989 PCr.LJ 1079. The contentions raised above is based on well-settled principles of law and there is no cavil with this proposition that non-compliance of the mandatory requirements of section 364(2), Cr.P.C. Is not mere irregularity but an illegality.

5. ' Mr. Sher Muhammad Shar learned Assistant Advocate-General has not disputed the above- referred factual and legal aspects of the matter.

6. ' Under the circumstances, I am of the considered view that the conviction recorded by the learned trial Court should be set aside and the case be sent back to the learned trial Court to proceed afresh from the stage of recording of the statement of accused Allah Rakhio under section 342, Cr.P.C. In accordance with requirements of section 364(2), Cr.P.C. And thereafter, to decide the case afresh without being prejudiced from the earlier judgment. Appeal is, therefore, allowed. The appellant, who is already on bail, shall continue to remain on bail subject to furnishing fresh surety in the sum of Rs,50,000 and P.R. Bond in the like amount before the trial Court within (30) days from today. The R&Ps of the case be sent back to the trial Court immediately.