1994 PLP 1493 (MLD)

MIAN ABDUL KHALIQ, J.

The appellant Dur Muhammad alias Duri and Qadir Bakhsh alias Qadoo alongwith their co-accused Ali Bakhsh alias Ali son of Manjoo absconder, Ali Nawaz absconder, Ali Bakhsh alias Ali son of Maujoo, Ghulam Nabi, Shah Muhammad alias Shahu, Abdul Majid and Sabu alias Goonga were tried by the learned Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, who vide its impugned judgment dated 14-4-1991 convicted and sentenced the appellants alongwith their co-accused Ayub Lund (since dead), Ali Bakhsh and Ali Nawaz sons of Manjoo under section 307/353/399/400/402, P.P.C. to transportation for life each, and a fine of Rs.2,00,000 each, in default whereof they were further directed to undergo R.I. for 7 years each. Ali Bakhsh alias Ali son of Maujoo, Ghulam Nabi, Shah ,Muhammad alias Shahu, Abdul Majid and Sabu alias Goonga were acquitted of the charge. Both Crl. A.S.C. (T) Nos.21 and 23/BWP of 1991 shall be decided by this judgment. .

2. The appellants alongwith their co-accused were sent up for trial by the police in case F.I.R. No.137 of 1989 registered at Police Station Bhong, District Rahimyar Khan under section 307/353/399/400/402, P.P.C. registered on the complaint of Irshad Akhtar Gulab, Inspector/S.H.O., who had alleged that he was informed that the appellants alongwith their co-accused armed with deadly weapons were present in a garden in the area of Nawazabad, which was raided by the complainant alongwith other police officials and the appellants armed with different fire-arms fired at the police. party, who also returned. The appellants were arrested from the spot, and sent up for trial.

3. The learned counsel appearing for the appellants at the very outset has drawn our attention towards the illegalities committed by the trial Court i.e. the charge was not framed in accordance with law. Qadir Bakhsh alias Kadu appellant was not given opportunity to cross-examine the P.Ws. except one. The statements of the accused under section 342, Cr.P.C. were not recorded in accordance with law and the impugned judgment does not conform to the provisions of section 367, Cr.P.C.

4. We have heard the learned counsel for the parties and have perused the record. The charge framed against the appellants by the trial Court does not contain the necessary ingredients as laid down under the law. When the charge does not give full notice to the accused of the allegations/charges, then it vitiates the whole trial. P.Ws. 1 to 9 and 11 were neither cross-examined by the appellants nor they were afforded opportunity to cross-examine them excepting P.W.1Qwhen Qadir Bakhsh appellant was given opportunity to cross- examine him, but he was not cross-examined. No certificate was given by the trial Court when appellants' statements were recorded under section 342, Cr.P.C. as laid down under section 364, Cr.P.C.

5. The .impugned judgment does not conform- to the provisions of section 367, Cr.P.C. as the appellants have been convicted and sentenced under section 307/353/399/400/402, P.P.C. jointly without convicting them separately under each section. The appellants are in jail since 31-7-1990 and no sentence for transportation for life is provided under the law.

6. For the foregoing reasons we have no option except to allow the appeals and acquit them of the charge. They shall be released forthwith if not required in any other case. N.H.Q./D-33/L Appeals allowed.