P L D 2026 Peshawar 1 (PLP)

IJAZ ANWAR, J.

This criminal appeal has been filed under section 410, Cr.P.C. by Mian Arshad against the judgement dated 06.11.2023, passed by the learned Additional Sessions Judge/Child Protection Court/ Judge Juvenile Court, Peshawar whereby appellant was convicted under section 376 read with 377-B, P.P.C./53, C.P.A. and sentenced to undergo rigorous imprisonment for 14 years and to fine of Rs. 500,000/- failing which he shall further suffer simple imprisonment of 06 months. Accused was also fined to Rs.500,000/- to be paid to the victim as compensation under section 544, Cr.P.C. which shall be recovered as arrears of land revenue. Accused was further convicted under section 506, P.P.C. for 02 years rigorous imprisonment. All the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C. The connected Criminal Revision 275-P/2023 "Mst. Kalsoom Bibi v. Mian Arshad and another" has been filed by complainant for enhancement of sentence awarded to the accused appellant vide impugned judgement dated 06.10.2023 to normal penalty of death along with compensation amount. Therefore, the criminal appeal as well as the criminal revision is decided by this single judgement.

2. In the instant case, accused/appellant Mian Arshad Khan who was posted as Sweeper at Government Girls High School Purana Qasab Khana, Peshawar is charged for sexual abuse and committing rape of Hira Batool aged about 12/13 years (student of 7th class) daughter of Mst. Kalsoom complainant. Accused/appellant faced trial before the trial court on the above charges and ultimately was convicted in the manner as referred in para-1 above. Hence this appeal.

3. This appeal came up for hearing before the court on 26.3.2023 on which date the court while taking note of the punishment awarded to the accused appellant by the trial court being not in consonance with the imprisonment carried by the sections of law made the following observation: "Learned counsel for the parties shall assist the court on the question of quantum of sentence awarded to the appellant in para No. 38 of the impugned judgement by the learned trial court under section 376 read with section 377-B, P.P.C. and sentence 53 of the KP Child Protection and Welfare Act, 2010 and whether the same is in consonance with the provisions of the aforesaid law after amendments. Adjourned to 30.04.2024."

4. Today, learned counsel for the parties heard and record perused with their assistance.

5. Perusal of the impugned judgement dated 06.10.2023 would reveal that the learned trial court while holding the accused appellant guilty of the offence of rape and child abuse convicted him consecutively under section 376 read with 377-B, P.P.C./53, C.P.A. and sentenced him to undergo 14 years R.I. However, the learned trial court neither awarded the conviction under separate heads/sections levelled against the accused appellant nor advanced the reasons why death sentence or life imprisonment was not awarded to the accused appellant under section 376, P.P.C. Section 376, P.P.C. is reproduced as under:-- "376, P.P.C. Punishment for rape.--(1) Whoever commits rape shall be punished with death or imprisonment for either description for a term which shall not be less than ten years or more than twenty five years for imprisonment for the remainder period of his natural life] and shall also be liable to fine. (1-A) Whoever commits an offence punishable under sub-s (1) or sub-s (2) or section 377 or section 377-B and in the course of such commission causes any hurt punishable as an offence under section 333, section 335, clauses (iv), (v) and (vi) of subsection (3) of section 337, section 337-C, clauses (v) and (vi) of section 337-F, shall be punished with death or imprisonment for life and fine.] [(2)1*****1 [(3). Whoever commits rape of a minor or a person with mental or physical disability shall be punished with death or imprisonment for life and fine. (4). Whoever being a public servant including a police officer, medical officer, jailor, taking advantage of his official position commmits rape shall be punished with death or imprisonment for life and fine.]

6. Subsection (3) of section 376, P.P.C. provides that in case of committing rape of a minor, the accused shall be punished with death or imprisonment for life. Similarly, as per subsection (4) of section 376, P.P.C., a public servant if guilty of offence of rape shall be punished with death or imprisonment for life. On record, it is established that the victim in the instant case is a minor girl. It is also evident from record that the accused appellant is a public servant being posted as sweeper in Government Girls High School Purana Qasab Khana, Peshawar, however, the trial court while passing the impugned conviction has totally ignored the provisions of section 367, Cr.P.C.

7. Section 367 of the Criminal Procedure Code, 1998 provides the scheme for writing judgement by the Presiding Officer of the court. The same being relevant is reproduced as under:- "

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) of 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) Judgment in alternative: When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (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. Proviso: [xxxxxxxx] Omitted by Law Reforms Ordinance, 1972, item

122. Enforced in the Province of Punjab w.e.f 26.12.1975. (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) For the purposes of this section an; order under Section 118 or Section 123, subsection (3), shall be deemed to be a judgment." The above provision of law specifically lays down the basics of the judgement to be written by the Presiding Officer of a Court containing the point or points for determination, the decision thereon and the reasons for the decision. As stated above, accused appellant has been convicted to 14 years imprisonment on a single count, however, the trial court neither passed separate sentence under separate sections of law nor recorded the reasons for awarding him lesser punishment as required under the provisions of section 367(5), Cr.P.C.

8. A Division Bench of this Court, in case titled "Nasar Shah v. The State" (2020 PCr.LJ 952) having features identical to the present case set aside the conviction and remanded the case to the trial court for re-writing of judgement. The relevant paras are reproduced as under: "

9. Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he also sentenced under sections 148 and 149, P.P.C. by applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as it is violative of the mandatory provisions of subsections (2) and (3) of section 367, Cr.P.C. which cannot be cured by the provisions of under sections 537, Cr.P.C. Guidance derived from the judgments of august apex Court, reported as 2016 SCMR 1190 titled Irfan and another v. Muhammad Yousaf and another, 2004 SCMR 1 titled Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others and 1997 SCMR 871 titled Sahab Khan and 4 others v. The State and others.

10. Without going into the merits of the case, we deem it appropriate to remand the case to the learned trial court for rewriting of the Judgment. Therefore, appeal is allowed, impugned judgment of the learned trial court is set aside and the case is remanded back to the learned trial court with the direction to re-write the Judgment in view of the above observations, within one month of the receiving the case-file." The august Federal Shariat Court in a recent judgment rendered in case titled "Sadam Hussain and another v. The State" "2024 PCr.LJ 499" held as under: "The trial court was obliged to state the reasons in its judgment as to why death sentence was not passed as required by subsection (5) of section 367 of the Act V of 1898.

16. In this regard, we are fortified by the judgment of Hon'ble Supreme Court in case of Muhammad Ismail v. The State reported in 2017 SCMR 713 held that "It is a bedrock principle of law that, once a Statute or rule directs that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is impliedly prohibited."

17. In the light of section 367 of the Act V of 1898 and taking into consideration the dictum laid down by the Hon'ble Supreme Court, we are inclined to accept these appeals, set aside the impugned judgment and remand the case to the Trial Court for re-writing of judgment taking into considera-tion the mandatory provisions contained in section 367, Cr.P.C. with the result, the case shall be treated pending before the Trial Court and the parties shall be allowed opportunity of addressing arguments."

9. In view of what has been discussed above we are of the view that the impugned judgment being passed in violation of the mandatory provision of section 367, Cr.P.C, cannot sustain in the eye of law. Resultantly, this appeal is partially allowed. The impugned judgement dated 06.10.2023 is set aside and the case is remanded back to the learned trial court for re-writing of judgement strictly in accordance with the procedure laid down under section 367, Cr.P.C. The connected Criminal Revision in view of the above position, has become infructuous and is disposed of accordingly. JK/169/P Order accordingly.