1985K2 (PLP)

The brief facts leading to these references are that Mr. Amanullah Soomro, 2nd Additional Sessions Judge, Jacobabad, had, during the months of October and November, 1982, announced oral orders of acquittal in the following seven cases :- . (1) S. C. No. 212/1981 St. v. Diloo alias Dil Murad under sections 328/ 498, P. P. C. (D./O. 31-10-1982). (2) S. C. No. 245/1982 St. v. Sanjar and others under section 307/34, P. P. C. (D./O. 17-11-1982). (3) S. C. No. 246/1982 St. v. Sanjar under section 13-D, Arms Act (D. 0. 17-11-1982). (4) S. C. No. 140/1981 St. v. Muwall and another under section 302/34, P. P. C. (D. O. 20-11-1982). (5) S. C. No. 82/1980 St. v. Gamoon and others under section 366/363/ 452/34, P. P. C. and 11 /16 of Islamic Law. (6) S. C. No. 153/1982 St. v. Shahmir and others under section 10/16 Zina Law. (7)-S. C. No. 7 and 90/81 St. v. Khaliqdad and another under section 364/34, P. P. C. In the. first four of these seven cases, judgments were dictated by him to the Stenographer, and the same were typed out by the latter. In the last three, out of these seven cases, the judgments had not been dictated. The Additional Sessions Judge expired on 1-12-1982. None out of the judgments was signed. There-is no doubt that the orders of acquittal orally announced by the Judge were acted upon and given full effect to. After the death of the Judge, a Reference was made by the Sessions Judge, Jacobabad, on 7-12-1982 to this Court, seeking orders of this Court. The office was directed to process the References as a Regular Criminal Reference. , The point that requires consideration is, whether an order orally announced by a Sessions Judge, acquitting an accused person is a valid judgment within the meaning of sections 366 and 367 of the Code of Criminal Procedure. The provisions of section 366 read as follows : "

366. Mode of delivering judgment.-(1) The judgment in every trial in any criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall be explained (a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders ; and (b) in the language of the Court, or in some other language which the accused or his pleader understands Provided that the whole judgment shall be read out by the Presiding Judge, if he is requested so to do either by the prosecution or the defence." While section 366, Cr. PA C. lays down the mode of delivery of judgment, the relevant provision in the Code in regard to contents and language of the judgment is contained in section 367, Cr. P. C. Subsection (1) of the said section reads as follows :- "

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." On a reading of sections 366 and 367, Cr. P. C. together, it would appear that a judgment has first to be written and then delivered in open Court, simultaneously signing the same. In fact, section 366 states that, if the accused requires the Court to read to him the contents of the judgment, the Court will read it over to him. It would thus not be open to two interpretations that a judgment could not be pronounced without writing the same, for nothing can be read, or, signed if it is not written at all. There are a few cases that 'need mention. The Dacca High Court in the case of Abdul Sattar Howladar v. The State P L D 1964 Dacca 56, was seized of a similar situation, because the judgment had not been written, or, signed. A point was raised before the said High Court that this was an irregularity, which was curable under section 537, Cr. P. C., but the learned Judges of the Dacca High Court felt no difficulty in repelling the contention that omission to write, or, sign a judgment was a mere irregularity. It appeals that the concept of irregularity was sought to be brought before the Dacca High Court on the basis of a judgment of Lahore High Court in the case of Guha any! others v. Emperor A I R 1942 Lah.

100. The learned Judges of the Dacca High Court disagreed with the Lahore view expressed in the case of Guha. The reasons for such disagreement were expressed in paragraph 11 of the judgment of the Dacca High Court, which appears at page 60 of the Report. The reasons that persuaded the Dacca High Court to arrive at the conclusions, and disagree with the view of the Lanore High Court were that the Code had prescribed the pronouncing of judgments after a careful and systematic consideration of the material, appearing in the evidence, hearing of the arguments, so that correct decision on merits was ensured. The Dacca High Court was of the view that, in order to maintain correctness and coherence indecision, it was indeed necessary to write a judgment before the same is pronounced. On the other hand, oral orders are generally made immediately on close of the case, and, if an oral order is made by a Sessions Judge without writing the judgment, in some cases the Judge may have to strain himself perhaps against the dictates of his conscience to adhere to the view that had been expressed by him in Court. This may often lead to failure of justice. There is another facet to say that, if a judgment is announced without the same being written, the party entitled to a copy of the judgment is deprived of it, so that even the appellate remedy is rendered less beneficial, for he must obtain a copy of the judgment before filing an appeal. For all these reasons, I am of the view that the patent provisions of sections 366 and 367 of the Code of Criminal Procedure should not be permitted to be violated, for such violation was likely to impair the efficiency of the machinery of administration of criminal justice. -In these circumstances, I am clearly of the view that a judgment announced without being written is, in fact, a nullity in law. The same point also came up before the Supreme Court in the case of L Mahboob Ali v. Syed Qamar All and another 1972 S C M R

109. In that case, the Magistrate, trying a criminal case, had announced the acquittal of a party without writing the judgment. The Magistrate died soon. after the announcement of the judgment. The matter came before the High Court of Sind, and the Single Judge considered the Impact of the situation. It seems an argument was raised that section 561-A, Cr: P. C. could be invoked to cure the irregularity, or, illegality. On the principles laid down by the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan and others P L D 1967 S C 317, such argument was repelled. It was said that inherent jurisdiction as contemplated by section 561.-A, Cr. P. C. was neither an alternate jurisdiction, nor an additional jurisdiction, but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available, or, has been provided by the Code itself. On such process of reasoning, the Supreme Court held that even section 561-A, Cr. P. C. could not be pressed in service in situations of this kind. The view was taken that, since the judgment had not been; written, there was, in fact, no judgment in the case, as is required by law. Mr. Mazhar Ali B. Chohan has, however, argued before me that, in the case of the respondents for whom be appears, the witnesses had not supported the prosecution, so that, if an order of re-trial is made now, it may result in unnecessary expense and prolongation of agony of the accused. All I can do is to sympathise with his clients, but, taking the view that the judgment orally announced was not judgment in the eye of law, an illegality cannot be allowed to perpetuate. It shall, however, be open to the clients of Mr. Mazhar Alt B. Chohan to make an application under the relevant provision of law to the Judge before whom the case comes up for hearing either for expeditious trial, or, for disposal of the case under section 265-K, Cr. P. C. He should feel assured that such an application will be expeditiously dealt with and disposed of. In the result, the Reference made by the Sessions Judge, Jacobabad, is accepted, the oral pronouncement of acquittal in each of the aforesaid seven cases is set aside and field to be a nullity in law. The cases shall now be sent to the Sessions Judge, Jacobabad, for retrial. It shall be open to the Sessions Judge, Jacobabad, to transfer these cases to any other Additional Sessions Judge within the same district. M. z. M. Reference accepted.