2018 PLP 511 (SCMR)

MANZOOR AHMAD MALIK, J.

Impugned herein is the order dated 02.05.2017 passed by the learned Division Bench of Lahore High Court whereby while hearing appeal of respondent No.1 against his conviction/sentence as well as the CSR transmitted by the learned Judge Anti-Terrorism Court Faisalabad, the case was remanded to the learned trial court for de novo trial.

2. Having faced trial in case FIR No. 68 dated 01.02.2014, offence under sections 302/365-A, P.P.C., registered at P.S. Samanabad, Faisalabad, the respondent No.1 was convicted by the learned Judge, Anti-Terrorism Court, Faisalabad vide judgment dated 24.03.2014 as under:- "therefore, I convict him under section 365-A of P.P.C. and sentence him to death. He is also convicted under section 7(e) of Anti-Terrorism Act, 1997 and is sentenced to death......The sentence of death will be on two counts. He is further convicted under section 316 of P.P.C. and is sentenced to 25 years' R.I. He will pay 'Diyat' in the sum of Rs.21,74,577/-, as is prevalent for the year 2013-14, to be apportioned by the legal heirs of the deceased, as per their Sharai shares and in default thereof the amount would be recoverable from him, in accordance with law."

3. The respondent No.1 then filed criminal appeal before the learned High Court against his conviction/sentence as alluded to in Para 1 above, wherein the impugned order was passed. Hence the instant criminal appeal by leave of the Court.

4. We have heard the learned counsel for the parties at length and have perused the available record.

5. A perusal of available record as well as the judgment of the learned trial Court dated 24.03.2014, reveals that charge was framed against the respondent No.1 on 17.03.2014. It has further been noted by us that while recording his plea after framing of the charge, the respondent No.1 only pleaded guilty to the extent of abduction of Shahzaib but he did not plead guilty to the extent of murder of Shahzaib and claimed trial. Thereafter, the statements of eleven prosecution witnesses were recorded and after that the respondent No.1 was examined under section 342, Code of Criminal Procedure. The respondent No.1 even produced defence evidence. Ultimately the respondent No.1 was convicted and sentenced by the learned trial court. Since the learned trial court convicted and sentenced the respondent No.1 after a full-fledged trial, the contention of learned counsel for the appellant that the impugned order remanding the case to the learned trial court for de novo trial is not sustainable in the eyes of law has force. Learned counsel appearing on behalf of respondent No.1 was not able to point out any procedural lacuna in the judgment of the learned trial Court under the relevant provisions of the Code of Criminal Procedure necessitating remand of case for de novo trial. He, however, opposed the prayer of the appellant to remand the case back to the learned High Court for deciding the criminal appeal on the available evidence. The learned Additional Prosecutor General supported the contention of learned counsel for the appellant. In these circumstances, we are of the considered view that the learned High Court has remanded the case back to the learned trial Court for de novo trial without assigning any valid reason. Therefore, the impugned order of the learned High Court is not tenable in law.

6. For the foregoing, this criminal appeal is allowed. The impugned order dated 02.05.2017 passed by the learned Division Bench of Lahore High Court is hereby set aside. Criminal Appeal No.745 of 2014 filed by the respondent No.1 against his conviction/sentence and Capital Sentence Reference will be deemed to be pending before the learned Lahore High Court and the same shall be decided after reappraisal of entire evidence available on record strictly in accordance with law, after hearing the parties. MWA/S-5/SC Appeal allowed.