P L D 2005 Karachi 340 (PLP)

2.The police investigated the Crime No.346 of 2003 registered at Police Station Mehmoodabad under section 11‑F (2) (6)/11‑G (2) of the Anti‑Terrorism Act, 1997 (hereinafter would be referred to as "the Act, 1997") on the allegation that the appellants and the acquitted accused were found to be collecting donation in the name of the proscribed organization Khadam‑ul‑Islam after putting a banner on the vehicle on 23‑11‑2003 at 3.00 p.m. near Aqsa Masjid, Lane No. 19, Mehmoodabad No.l‑1/2, Karachi. The police arrested the appellant and acquitted accused, secured car, receipt books, banner and sealed them. On 16‑4‑2004, the trial Court framed the charge under sections 11‑F(2) (6)/11‑G(2) of the Act 1997 to which the appellants and the acquitted accused pleaded not guilty.

3. In support of the case the prosecution examined four witnesses. The trial Court also recorded the statements of the appellants under section 342, Cr.P.C. They produced their defence witnesses. After considering the material available on the record, the learned trial Judge convicted and sentenced the appellants as mentioned above under the impugned judgment. Whereas co‑accused Sayed Amin Raza was acquitted.

4. We have heard the Advocate for the appellants, Assistant Advocate General and perused the record of this case very carefully.

5. The learned Advocate for the appellants has argued that the trial Court did not award separate conviction for two separate and distinct offences thereby violated section 367(2), Cr.P.C. He has relied upon an unreported judgment of this Court delivered in the case of Sayed Khalid Raza v. State in SPL. ATA. No. 09 of 2004 decided on 21‑7‑2004. He has also argued on the merits of the case by stating that the evidence is not sufficient to connect the appellant with the commission of this crime.

6. The learned Assistant Advocate General has stated that a single sentence was awarded under two different sections of the Act 1997 therefore the defect in the judgment is irregularity which can be cured under section 537, Cr.P.C: On merits he has argued that the prosecution has led sufficient evidence warranting the conviction of the appellants.

7. As, regards to the legal aspect of the case it is noticed that the trial Court framed charge under sections 11F(2) (6)/11G(2) of the Act, 1997 but the appellants were convicted for offences punishable under sections 11G(1)(a)/11F(5)(6). The sentence provided under section 11F(5)(6) is imprisonment not less than one year and not more than five years and a fine whereas sentence provided for offence as defined under section 11G(1) (a) is simple imprisonment not exceeding three months or fine or both as provided under subsection (2) of section 11G. But the trial Court has awarded a composite sentence of five years and fine of Rs.50,000 or in default thereof to six months to 'each of the appellants and their all movable and immovable properties were ordered to be confiscated. Under both the above provisions of law it will be noticed that the confiscation of movable and immovable properties of an accused person is not provided as a sentence in respect of the above mentioned offences. As such, the trial Court was not I empowered and it was beyond its jurisdiction to award such sentence being not provided under any provision of law.

8. There is vast difference between the sentences under the above mentioned two provisions of law but the trial Court has awarded the sentence of five years for both the above mentioned sentences. Section 367, Cr.P.C., reads as under:‑ "

367. Language of judgment: Contents of judgment.‑‑(1) Every such judgment shall except has otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him. (2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced. (3) Judgment in alternative.‑‑ When the conviction is under the Pakistan Penal Code and it is doubtful under which of‑ two sections, or under which of two parts of the same section of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty. (5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death and Court shall in its judgment state the reason why sentence of death was not passed. Proviso omitted by Law Reforms Ordinance, 1972, item 122, enforced in the Province 'of Punjab with effect from 26‑12‑1975. (6) For the purposes of this section, an order, under section 118 or section 123, subsection (3), shall be deemed to be a judgment."

9. Under subsection (2) of section 367, Cr.P.C the trial Court was required to specify in the judgment the offence and the section of the Penal Code or other law under which the accused was convicted and the punishment to which he was sentenced. The award of composite punishment is not irregularity or illegality if the sentence awarded under various sections is permissible under the law and if a conviction under one of its sections is set aside then the sentence would not be deemed to have been enhanced in respect of remaining offence. Otherwise it will be illegality which cannot be cured under section 537, Cr.P.C. A similar view was taken in the case of Murlidhar v. State AIR 1953 Allahabad 245(D.B). The relevant portion of the judgment appearing at page 250 is as under:‑‑ "We, therefore, hold that single sentence of imprisonment for the various offences for which an accused is convicted does not vitiate the trial, unless there had been a failure of justice and that the maintenance of that sentence by an appellate or revisional Court, even when the accused is acquitted of the offence convicted of, will not amount an enhancement of the sentence and that such a sentence should be interpreted to mean that the trial Court awarded identically the same sentences for each of the offence of which the accused was convicted, provided of course that such a sentence was within the maximum limits of the sentence provided by law for that offence, and that the trial Court had ordered the sentences to run concurrently and that in cases where such a sentence went beyond the maximum limit of imprisonment provided for any of the offences of which the accused was convicted, the sentence for that offence would be deemed to be the maximum provided by law for that offence. We further hold that a composite sentence of fine should be treated to be made up of separate sentences of fine equal in amount for each of the offences of which the accused had been convicted, provided that such amount is not more than the maximum allowed under that offence."

10. Keeping in view the above principle of law in the present case, if the conviction under section 11F(5)(6) is set aside then the sentence awarded by the trial Court is beyond the maximum sentence or section 11G(2) of the Act 1997., Therefore, the composite sentence awarded in the present circumstances of the case is not merely irregularity but is an illegality that has occasioned a failure of justice, therefore, it cannot be cured under section 537, Cr.P.C.

11. In the light of what has been discussed above, we set aside the conviction and sentence awarded to the appellants under the impugned judgment. The case is remanded to the trial Court for rehearing of the parties and pass appropriate judgment in accordance with law. The appeal is allowed in the above terms. N.H.Q/M‑204/K Case remanded.