1991 PLP 226 (MLD)

Sh. MUHAMMAD ZUBAIR, J.--Elahi Bakhsh was convicted under section 302, P.P.C. for the murder of Abid Hussain Shah and sentenced to imprisonment for life vide judgment dated 4-9-1985, passed by Ch. Muhammad. Rafique, Sessions Judge. He has appealed from jail. Syed Ashiq Hussain complainant has also filed Revision Petition No.733 of 1985, for the enhancement of the sentence, which has been admitted to regular hearing vide order dated 22 3-1986. We propose to dispose of both the matters; by this judgment.

2. Brief facts of the prosecution case are that on 11-1-1985, the appellant committed the murder of Abid Hussain Shah with a pistol. The case was registered against him accordingly. The trial was pending before the learned Sessions Judge, Bhakkar, when the appellant opted to make statement that if Ashiq Hussain Shah complainant deposes after ablution in Qasar-e-Zenab, that the appellant had committed the murder of the deceased, then he might be punished accordingly. After recording the statement of the appellant, the case was adjourned to 4-9-1985 and on that date the impugned judgment was passed, convicting the appellant for the murder of Abid Hussain Shah and sentencing him to imprisonment for life.

3. We have heard the learned counsel for the parties and we find that the trial Court has committed gross illegality by deciding the case on special oath, as provided under the Oaths Act. The learned Advocate-General, who appeared on the preliminary stage, conceded that sections 8 to 11 of the Oaths Act were not applicable to the criminal proceedings and he had placed reliance on Emperor v. Juman Sajan Otho AIR 1947 Sindh 66.

4. Learned counsel appearing for the complainant has frankly conceded that the procedure adopted by the learned Sessions Judge while convicting the appellant is not warranted by law and it cannot be cured under section 537, Cr.P.C. as this illegality goes to the root of the case and whole proceedings before the trial Court stood vitiated.

5. In view of the above legal position, we accept this appeal, set aside the conviction and sentence of the appellant. The case is remanded to the Sessions Judge for afresh decision in accordance with law. The appellant would be treated as under trial prisoner in the aforesaid murder case. The learned Sessions Judge should fix this case before the winter vacation and dispose it of within two months without fail. The office should transmit the record to the learned Sessions Judge, Bhakkar immediately:

6. As the case has been remanded to the learned Sessions Judge for a fresh decision, the revision petition has become infructuous and is disposed of accordingly. N.H.Q/E-28/L Case remanded.