1998 P Cr (PLP)

3. Muhammad Ali, Muhammad Siddique and Abdul Majeed sons of Shah Din through Criminal A.S.C. (Tribunals) No.13 of 1977 and Mushtaq Ahmad and Abdul Sattar sons of Shah Din through Criminal A.S. C. (Tribunals) No. 15 of 1997 challenged their convictions and sentences, while the State through Criminal A.S.C, (Tribunals) No.19 of 1997 prayed for the conviction of the abovementioned appellants, excepting Muhammad Siddique, according to law. Through this judgment all the abovementioned appeals are being disposed of.

4. The learned counsel for the convicted-appellants raised a serious objection to the legality of the impugned judgment. They made a reference to section 367 of the Code of Criminal Procedure while 'submitting that the impugned judgment was not in conformity with the provisions contained therein. It was, inter alia, pointed out that: (i)???????? the appellants were convicted under section 326, P.P.C., which was substituted through the Criminal Law (Fourth Amendment) Ordinance, 1991, i.e, enforced prior to the occurrence in 1992; (ii)??????? the conviction of the appellants (except Muhammad Siddique) was recorded for causing grievous injuries to Muhammad Rashid deceased but nothing was mentioned about causing injuries to Mst. Naseem Akhtar deceased; and (iii)?????? the findings of the learned trail Judge were not according to the charge framed against the accused persons.

5. First of all, I would like to take up the legal aspect of the matter regarding the conviction under section. 326, P.P.C. Sections 299 to 338 contained in Act XLV of 1860 (Pakistan Penal Code) were substituted by the Criminal Law Fourth Amendment) Ordinance, 1991 which was enforcement on the 24th day of August 1991. The said amendment was kept alive through various successive Ordinances and finally embodied in the Criminal Law (Amendment) Act, 1997 (Act II of 1997) enforced on the 11th April, 1997. The relevant section is as follows:-- "

7. Substitution of sections 299 to 338 Act XLV of 1860.

(1) In the Penal Code, for sections 299 to 338 the following shall be substituted. The occurrence in this case took place on 12-9-1992, while the impugned judgment was announced on the 30th October, 1997. Indeed, the leaned trial Judge convicted and sentenced the appellants under a penal provision of law no longer in existence. He should have recorded the conviction under the corresponding provision, if any, enforced at the relevant time.

6. A perusal of the charge-sheet reveals that all the accused persons were charged separately for committing Qatl-i-Amd of Muhammad Rashid and Mat. 'Naseem Akhtar. Charges at Secondly and Thirdly referred. The allegations as levelled in the F.I.R. by the complainant Mat. Nasreen Akhtar and deposed by the eye-witnesses Mat. Nasreen Akhtar (P.W.5) and Muhammad Saleem Nawaz (P.W.6) are that all the accused persons had caused injuries try both the deceased persons. In such a case, the trial Court was obliged to determine the criminal liability of each accused qua each deceased. The relevant part of section 367 of Cr.P.C., which deals with language and contents of judgment, is reproduced below to the extent it concerns the case in hand: "

367. Language of judgment Contents of Judgment.

(1) Every such judgment shall, except as 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) 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) (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, the Court shall in its judgment state the reason why sentence of death was not passed. (6) ?????? ????????????????????????????? "

7. In the case of Shahmand and 6 others v. The State 1991 PCr.LJ 833 it was observed: "It is well settled that where more accused are tried for more than one murder, the trial Court is obliged to determine the criminal liability of each accessed qua each deceased and on finding any particular accused to be member of the unlawful assembly in prosecution of the common object whereof more than one person are killed, it has to determine the legal sentence to be passed on each accused for each murder. For all these reasons, the judgment of the trial Court as a whole cannot be approved."

8. In the case of Muhammad Ghayyur alias Ghori and others v. The State (1986 PCr. LJ 2344) it was held as under: 'No doubt, in Criminal Procedure Code, no particular form of judgment is prescribed as section 367, Cr.P.C. merely requires that the Court will set-forth the points for determination and will, then, come to a finding upon them. The main requirements of section 367, Cr.P.C. are to the effect that the judgment must be reasonably lucid because this will assist an Appellate or Revisional Court when reviewing the case at large before it at later stag. Failure to comply with the provision would normally vitiate the judgment." And was further held: "Since the judgment of the trial Court is not a lucid one and suffers from ambiguities, it is neither complete nor self-contained one, therefore, there is no option but to accept the appeals and set aside the convictions and sentence of -the appellants and remand the case for re?writing a legal and proper judgment." 9.???????? In Muhammad alias Jhari's case (1986 PCr.LJ. 2535) the following were the observations: " ....I am of the clear view that the learned Assistant Sessions Judge, Gambat has not complied with the requirements of section 367(1), Cr.P.C. and as such the impugned judgment is not a judgment in the eye of law. Consequently, I have no alternative but to set it aside and direct the trial Court to rewrite the judgment keeping in view the provisions of section 367(1), Cr.P.C Particularly those with regard the framing of the points for determination and the findings thereon alongwith reasons for arriving at those findings."

10. The irregularities pointed out in paras. 5 and 6, supra, are not curable and the failure on the part of the learned trial Judge to comply with the mandatory provisions of section 367, Cr.P.C. have vitiated the impugned judgment. As a result of the above, both the appeals of the convicted accused persons are accepted and their convictions and sentences are set aside. The case is remanded for re-writing the judgment in accordance with the provisions of section 367, Cr.P.C. while keeping in mind the guide lines given in the above cited cases. It is also suggested that the study of the book "judgment and how to write them" by Dr. S.S. Nehru, would be beneficial and helpful to overcome the practical difficulties while writing a judgment.

11. So far the State appeal is concerned it is against the acquittal of Muhammad Ali, Mushtaq Ahmad, Abdul Majeed and Abdul Sattar under section 302/149, P.P.C. This appeals has become infructuous for the time being because of the remand of the case. No findings are being recorded about the accused acquitted by the trial Court as the State did not file any appeal against their acquittal. Criminal Appeals S.C. (Tribunals) Nos. 13 and 15 of 1997 filed by the appellants are accepted in the above terms and case remanded for re-writing of judgment within one month, while Criminal A.S.C. (Tribunals) No. 19, of 1997 filed by the State is dismissed having become infructuous. H.B.T./M-563/L????????????????????????????????????????????????????????????????????????????????? Case remanded.