Before Muhammad Jan M. R. Kayani, JJ.
MUHAMMAD AZIZ – Convict-Appellant
THE CROWN – Respondent

Criminal Appeal No. 809 of 1949, decided on 3rd February 1950, from the order of Additional Sessions Judge, Rawalpindi, dated the 8th August 1949, convicting the appellant.

(a) Punjab Public Safety Act (II of 1947), S. 35 – Does not relate to mode of recording evidence but to procedure to be adopted in trial.

While the Punjab Public Safety Act (II of 1947) was in force , the Sessions Judge had recorded evidence not as required by section 355, but as prescribed by section 356 of the code of Criminal Procedure.

Held, section 35 of the Punjab Public Safety Act (II of 1947), does not say how the evidence should be recorded but merely states that “in all cases procedure prescribed for the trial of summons-cases by Chapter XX of the Code shall be adopted”, and since Chapter XXV in which sections 355 and 356 occur deals with the mode of taking and recording evidence, not with the procedure prescribed by Chapter XX for the trial of summons, cases, the objection, viz, that the evidence was not with the accordance with section 355 Criminal Procedure Code is without force. Section 355 prescribes the mode of taking and recording evidence “in summons-cases tried before a Magistrate”, not in such cases when tried before a Sessions Judge. [p. 139].

(b) Criminal Procedure Code (V of 1898), S. 356 (3) and S. 537 – Failure to make memorandum of evidence, curable.

The trial Court had failed to make a memorandum of evidence as required by section 356 (3), Criminal Procedure Code.

Held, that this was a curable irregularity, but Magistrates and Judges recording evidence, where they do not record it themselves, should in accordance with the express provisions of sub-section (3) of section 356 make their notes of the substance of what each witness deposes. [pp.140, 141].

I. L. R. 5 Rangoon 53; A. I. R. 1934 Cal. 636 relied on.
A. I. R. 1937 Oudh 126 distinguished.

Abdur Rahman, for Appellant.
K. B. Mushtaq Hussain, for the Advocate General, for Respondent.