NADIR KHAN vs THE STATE

1. ' MUHAMMAD ROSHAN ESSANI, J.---We propose to dispose of this Special Anti-Terrorism Appeal No,55 of 2000 and Special Anti-Terrorism Jail Appeal No,16 of 2001 by this single judgment, as both arise out of the-same judgment of the trial Court dated 6-5-2000.

2. ' The appellants/accused Nadir Khan son of Taj Muhammad, Nadeem Ahmed son of Rasool Bux and Kamran son of Kareem have assailed the, aforesaid judgment dated 6-5-2000 passed by the learned Anti-Terrorism Court No,IV at Karachi in Special Case No,31 of 2000 pursuant to F.I.R. No,26 of 2000 of Police Station Chakiwara registered under sections 377/364-A, section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 7 of Anti-Terrorism Act, 1997, whereby the appellants/accused were convicted and sentenced as under:-- "(i) All the three accused persons are convicted under section 364-A, P.P.C. And sentenced to undergo R.I. For 7 years.

(ii) All the accused persons are convicted under section 377, P.P.C. And sentenced to undergo R.I.

3. For 5 years.

(iii) All the three accused persons are directed to pay fine of Rs,10,000 each. The fine if recovered be paid to victim Danish as compensation under section 544-A, Cr.P.C. In default thereof, they shall undergo R.I. For 6 months more."

4. ' The appellants/accused were also granted benefit under section 382-B, Cr.P.C. By the trial Court.

5. ' We have heard Mr. Anwar Hussain, learned counsel appearing on behalf of the appellants/accused and Mr. Habib Ahmed, 'learned Assistant Advocate-General appearing on behalf of the State.

6. The perusal of the record shows that the statements under section 342, Cr.P.C. Of the appellants/accused do not bear the certificates of the trial Judge in his own hand which is mandatory requirement under section 364(2), Cr.P.C. It will be pertinent to reproduce hereinbelow the section 364(2), Cr.P.C. For convenience sake:-- "Section 364(2) when the whole is made conformable to what he declares is the truth the record shall be signed by the Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused." [Underlining is ours].

7. The said statements do not bear the certificate of the trial Judge in his own hand, which is a clear illegality. This defect is not curable under section 537, Cr.P.C.

8. ' It is well-settled that every incriminating piece of evidence must be put to the accused while recording his statement under section 342, Cr.P.C. In the case in hand no questions with regard to medical evidence as well as Chemical Analyser's Report were put to the appellants. Moreover, no reply to questions Nos.8 and 9 in the statement of appellant Nadir Khan, questions Nos.9 and 10 in the statement of appellant Nadeem Ahmed and question No,10 in the statement of Kamran were recorded by the trial Court. Even no reasons for non-recording the same have been assigned. The column relating to the age of the accused Kamran in the statement under section 342, Cr.P.C. Has been left blank by the trial Court. It appears that no question was asked by the trial Judge to appellant Kamran with regard to his age.

9. ' Consequently, looking towards the peculiar facts and circumstances of the case, the impugned judgment dated 6-5-2000 is set aside and the special case stated hereinabove is remanded back to the trial Court for proceeding with it afresh from the stage of the statement of accused under section 342, Cr.P.C. In accordance with law.

10. ' Both Special Anti-Terrorism Appeal No,55 of 2000 and Special Anti-Terrorism Jail Appeal No,16 of 2001 stand disposed of in terms stated hereinabove.