2009 P Cr (PLP)

SYED YAHYA ZAHID GILANI, J.

The instant case was registered vide F.I.R. No.490, dated 2-11-2003 of Police Station Mandan, Bannu, under sections 324/336/34, P.P.C., wherein Malik Khairan, Amin Habibullah alias Mirbal and Javed Khan were charged by the complainant Mst. Khan Khuddara Bibi for effectively firing at her and ineffectively firing at her husband Muhammad Jamil.

2. All the three accused were tried in the Court of Mr. Asghar Shah Khilji, learned Additional Sessions Judge-II, Bannu. Vide judgment, dated 15-1-2007 he convicted accused Malik Khairan and acquitted accused Amir Habibullah alias Mirbal and Javed Khan.

3. Now, Malik Khairan convict-appellant has preferred Criminal Appeal No.4 of 2007 against his conviction and Mst. Khan Khuddara complainant has preferred Criminal Appeal No.7 of 2007 against the acquittal of accused Amir Habibullah alias Mirbal and Javed Khan to be jointly decided by this judgment.

4. I have heard arguments of Mr. Gauhar Zaman Kundi, Advocate for the convict-appellant and acquitted respondents-accused. Mr. Anwar -ul-Haq, Advocate has been heard for complainant. Mr. Farooq Akhtar, Advocate argued for the State. Record has been consulted.

5. The convict-appellant and the acquitted accused-respondents were charged in the trial Court on 2-9-2004 on two counts under sections 324/34, P.P.C. The first count was regarding effective firing on the complainant Mst. Khan Khuddara and second count of the charge was regarding ineffective firing on Muhammad Jamil, husband of the complainant. During the trial, prosecution produced evidence on both the counts and the statements of accused recorded under section 342, Cr.P.C. reveals that all the three accused were questioned on both the counts mentioned in the charge. However, while recording the impugned judgment, learned trial Court has neither convicted nor acquitted the accused under the second count of the charge pertaining to the ineffective firing on Muhammad Jamil, husband of the complainant. Meaning thereby that no decision was given on the second count of the charge. This is a clear cut violation of section 367, Cr.P.C. which is not curable under section 537, Cr.P.C. being a serious illegality on the simple ground that there is no decision of the trial Court over the second count of the charge pertaining to the ineffective firing over Muhammad Jamil. In this respect, the judgment of the Honourable apex Court in the case of Farukh Sayar v. Chairman NAB 2004 SCMR 1=2004 SCJ 117(b) and (c) can be referred wherein it has been held as under:

"(b) Criminal Procedure Code (V of 1898) Ss.367, 537

Failure to specify in judgment the points for determination shall fall short of requisite standard

Such an omission on the part of Court is not curable under S.537 as absence of decision on points for decision and reasons in judgment amounts to an illegality which prejudices the case of accused. (c) Criminal Procedure Code (V of 1898) S. 423(a)(d)

High Court is empowered under S.423(a)(d) to remand a case to Trial Court for writing judgment in accordance with requirements of S.367

Such remand order would be in line with the law laid down by Supreme Court."

6. In this state of affair, I am constrained to accept both the appeals, set aside the impugned judgment and remand the case to trial Court under section 423(d), Cr.P.C. with the direction to rewrite judgment after listening arguments of learned counsel for the parties on merits, strictly according to law. The parties are directed to appear in the trial Court on 16-5-2009. H.B.T./98/P Case remanded.