1990 P Cr (PLP)

3. The appellant pleaded not guilty to the charge framed under section 302, P.P.C. At the trial the prosecution has examined Ahmad Ali (P.W.1), Sakhawat Hussain A.S.I. (P.W.2), Liaquat Ali (P.W.3), Mst. Amina (P.W.4), Muhammad Iqbal (P.W.5), Dr. Ali, Hasan Mirani (P.W.6), Nannhey Khan (P:W.7), Riiwan Ali (P.W.8), Bundo Khan (P.W.9), Dr. Abdul Majeed (P.W.10) and Safdar Ali Khan, Inspector (P.W.11).

4. The appellant met the charge with a bare denial by professing innocence. He examined himself on oath (D.W.1), and also examined Muhammad Khan (D.W.2), Muhammad Akbar (D.W.3) and Mst. Gulshan (D.W.4) in his defence.

5. On the assessment of evidence adduced by the prosecution alone, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly giving rise to this appeal.

6. I have heard Mr. MA. Wahab Khan, learned counsel for appellant and Mr. Imam Bux Shaikh, learned counsel for State.

7. I need not enter into the merits of the case as the judgment recorded by the learned Additional Sessions Judge is not a legal judgment within the meanings of section 367, Cr.P.C. the provisions of which are mandatory and are intended to constitute the substance as distinguished from mere form of judgment.

8. A bare perusal of the impugned judgment shows that the learned Additional Sessions Judge did not examine the record of the case carefully and has completely overlooked the evidence of Muhammad Khan (D.W.2), B Muhammad Akbar (D.W.3) and Mst. Gulshan (D.W.4), as if these depositions were not a part of trial proceedings. He was all along under this impression that the appellant did not adduce any evidence, which fact is reflected at page 3 of the impugned judgment in the following words: ‑‑ Statement of accused under section 342, Cr.P.C. recorded, wherein accused denied the allegations levelled against him. No defence was led by accused. However, accused has submitted his written statement and has also examined himself on oath in disproof of charge against him.

9. In all cases in which the accused claims to be tried the Court should note in the judgment whether he examined witnesses in his defence. Where the defence is disbelieved, some reasons should be given in judgment why the defence was disbelieved and the prosecution evidence was preferred. 1n weighing the evidence the Court should take into consideration the defence taken and should express an opinion on it, and where there is defence evidence which is inconsistent with the prosecution story, some reasons should also be given why the defence evidence should be discredited.

10. So far as I have been discussing the case untrammelled by any authorities although there is abundant authority for the proposition that the Court cannot exclude any of the material from consideration while recording a finding. In Abdul Sattar Molla and others v. The State reported in P L D 1963 Dacca 251, it was held that evidence of both the parties is to be considered side by side for arriving at findings in favour of or against the prosecution. Wbile examining a similar point in the case of Bashir Ahmad v. The State reported in 1982 P Cr. L J 21, a Division Bench of the Lahore High Court observed: ‑‑ It is correct that onus of proof is always on the prosecution but it cannot be said that any of the material should be excluded from consideration. The judgment has to be based on consideration of the entire record and circumstances of the case.

11. In the case of Moula Bux v. The State reported in 1985 P Cr. L J 2968, Rafiq Muhammad Tarar J., remarked as follows:‑‑ Section 367, Cr.P.C. requires that judgment must contain the points for determination, the decision thereon and the reasons for decision. It was a case in which the accused had taken a specific plea. The Court was required to put both the versions in juxtaposition and arrive at a definite conclusion after considering the entire evidence. The impugned judgment does not fulfil the mandatory requirements of section 367, Cr.P.C.

12. While examining the provisions of section 367, Cr.P.C. in the case of Muhammad Ghayyur alias Ghori and others v. The State, reported in 1986 P Cr. L J 2344, a Division Bench of the Lahore High Court observed that failure of compliance with the provisions of section‑367, Cr.P.C. vitiates the judgment and the proper course was to remit the case for rewriting of judgment.

13. On a careful review of the case‑law available on this subject, I am clearly of the view that the judgment recorded by learned Additional Sessions Judge cannot be sustained. The conviction and sentence awarded to appellant are, therefore, set aside and the case is remanded for rewriting of judgment. Since the IIIrd Additional Sessions Judge (West), Karachi, has already formed opinion in this case, the R & P tie sent to Sessions Judge (West), Karachi, who should write tile judgment after hearing the counsel for parties within one month from the receipt of R & P. Since the: appellant was on bail at the time of recording judgment and the sentence awarded to him is set aside, he is allowed bail in the sum of Rs.50.000 with P.R. in the like amount to the satisfaction of learned Sessions Judge (West), Karachi. The appeal is accepted in the above terms.

14. Before I take leave, I may reproduce a quotation of Whately about 'the judgment, which is as follows: ‑‑ The judgment is like a pair of scales, and the evidence like the weights; but the will holds the balances in its hands; and even a slight jerk will be sufficient in any case, to make the lighter side appear the heavier. N.H.Q./M‑956/K Girder accordingly.