2001 PLP 212 (YLR)

Shahadat Awan for Appellant. Fazal‑ur‑Rehman Awan for the State. Date of hearing: 11th April, 2001. This appeal under section 410, Cr.P.C. at the instance of appellant/convict Khursheed Hussain alias Nayyab son of Sultan Hussain, is directed against the judgment, dated 1st April, 1996 passed by the learned IIIrd Additional Sessions Judge, Karachi (Central), whereby the appellant has been convicted under section 324, P.P.C. (Qisas and Diyat) and has been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000 or in default to suffer rigorous imprisonment for three months more. Mr. Shahadat Awan, learned counsel for the appellant has submitted at the very outset that before dilating on the merits, he would try to persuade this Court for the remand of case to the trial Court, because of various irregularities and illegalities in the proceedings. Mr. Shahadat Awan has pointed out that the incident took place on 3rd of. April, 1992 at about 10‑20 a.m. However in the charge, the date of incident is shown as 4‑4‑1992 which is actually the date of recording of F.I.R. and the time of occurrence is not shown in the charge. He has next pointed out that while recording the statement of P.W.2 Muhammad Shahzad, the injured, although there are indications that the cross‑examination was conducted but there is no reference to the fact that cross‑examination was actually conducted on the same date. Three other witnesses were examined and after recording examination‑in‑chief, the cross‑examination starts after the heading, "cross to defence counsel for accused". In the statement of P.Wr2 Muhammad Shahzad no such words are appearing. Mr. Shahadat Awan has further submitted that the definition of injuries in the P.P.C. have been amended. Previously the injuries in the P.P.C. as grievous or simple but under the Qisas and Diyat Ordinance the definition of injuries have been totally changed and now the kinds and definitions of injuries are given in sections 332, 333, 335, 337‑B, 337‑C and 337‑E, P.P.C. The Medical Officer while giving his statement described the injury on the person of injured as grievous and no clarification was sought as to in which category of the injuries now on the statute book, the injury on the person of injured falls. Mr. Shahadat Awan has submitted that looking to the nature of injury it falls under the category of Shajjah‑i‑Khafifah defined in section 337(2) (i) and is punishable under section 337‑A (i) with imprisonment for two years. Mr. Shahadat Awan has further (sic) statement of accused is though appended with certificate required under section 364, Cr.P.C. and states that the statement has been signed by accused but in fact the signature of accused does not appear on the statement under section 342 which is a mandatory requirement. For the foregoing reasons Mr. Shahadat Awan has submitted that the conviction and sentence be set aside and case may be remanded back to the trial Court for de novo trial after reframing of the charge and by complying the provisions for the trial in Criminal Procedure Code. Mr. Fazal‑ur‑Rehman Awan, learned counsel for the State has candidly conceded that the irregularities/illegalities have occurred during the course of trial and therefore, the conviction and sentence is not maintainable which may be set aside and the case may be remanded back to the trial Court for retrial. I am persuaded to agree with the submissions by the learned advocates for the parties. The conviction and sentence impugned in this appeal are hereby set aside and the case is remanded back to the trial Court for retrial in the light of discussion made above. The appeal is allowed accordingly. Appellant is present on bail and shall continue to remain on bail during the retrial by the trial Court. N.H.Q./K‑36/K Case remanded.