Language and contents of judgment

2024 MLD 1185 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 7Criminal Procedure Code (V of 1898), S. 367Commission of offence of qazfAppeal against acquittalAppreciation of evidenceLanguage and contents of judgmentAccused was charged for leveling allegation containing imputation of zina against the complainant

Clause (b) of second exception to S.3 of Ordinance VIII of 1979 is concerning a person held for the Offence of Qazf if a witness gives false evidence of commission of 'zina', in Court or according to findings of the court false accusation of zina-bil-jabr is levelled

Trial Court while deciding the complaint filed by respondent No.2 in its judgment had not given any finding regarding giving false evidence by the witnesses/respondents

Similarly, clause (c) of second exception to S.3 of Ordinance VIII of 1979 also concerned the complainant who made false accusation of 'zina-bil-jabr but in the complaint case filed by the respondents, the Trial Court had not given any finding that complainant had made false accusation of 'zina-bil-jabr, rather the complainant and his brother were acquitted while extending them benefit of doubt

Appeal against acquittal was dismissed accordingly.

2022 YLR 459 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 7Criminal Procedure Code (V of 1898), S. 367Commission of offence of QazfAppreciation of evidenceAppeal against acquittalLanguage and contents of judgmentScopeAccused was charged for levelling allegation containing imputation of zina against the complainant

Record showed that the adopted procedure by the Trial Court run contrary to law and normal procedure as evidence without recording examination-in-chief on oath could not be considered as evidence

Impugned judgment had been rendered on the strength of defective evidence

Points for determination had not been formulated in terms of S.367, Cr.P.C.

As a general rule of Qanun-e-Shahadat, 1984, only such statement was legal and admissible which was given during the course of judicial proceedings and was on oath and was taken by a person authorized under the law to take down the evidence and that it was made in the presence of the adverse party, giving the right to the adverse party to cross-examine the statement of such deponent

Admittedly, the statements of three witnesses including complainant were not recorded in accordance with law

Such statements providing opportunity of cross-examination at a subsequent stage, could not have been appreciated either way on account of being violative of mandatory procedure

Section 367, Cr.P.C. indicated that a judgment must contain point or points for determination, the decision thereon and reasons for the decisions

Said section of the Code casted duty upon courts to formulate/point for determination and the court while writing judgment had to ponder over all possible situation and probabilities for drawing just decision

Section 367, Cr.P.C. was not permissive but imperative, thus, it was the duty of the judge to ensure not only that he dispensed justice but the justice also seemed to have been done

Provision of said section was mandatory and intended to constitute a substance as distinguished from mere form of judgment

Mis-appreciation of evidence leading towards illegality, gross irregularity, perversity or infirmity or finding of the Trial Court based on surmises, conjectures, shocking or artificial, warranted interference by the Appellate Court as contemplated by S.417, Cr.P.C.

Appeal was allowed, in circumstances, by setting aside impugned judgment and the case was remitted to the Trial Court for de novo trial after affording fair opportunities to the parties to lead their evidence in accordance with law.

2021 YLR 2352 FEDERAL-SHARIAT-COURT Judicial Precedent

Ss. 302(b), 365-B & 34Criminal Procedure Code (V of 1898), S. 367Qatl-i-amd, Kidnapping, abducting or inducing woman to compel for marriage, common intentionAppreciation of evidenceLanguage and contents of judgmentScopeProsecution case was that the accused committed zina-bil-jabbr with minor daughter of complainant and killed herRecord showed that the provisions of S.367, Cr.P.C., were never adhered to

Accused was convicted under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.365-B, P.P.C., whereas, S.365-B, P.P.C. did not find mention in the charge nor in the questioner maintained under S.342, Cr.P.C.

Under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the maximum sentence that had been provided was ten years and if someone was found guilty of offence under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, then the convict had to be sentenced with whipping numbering 30-stripes

Section 10(2) of the Ordinance did not apply and the applicable section was 10(3)

Accused was convicted under S.302, P.P.C.

Section 302, P.P.C. contained three clauses, which carried its own consequence, effect and impact keeping in view the facts and circumstances of each case

Trial Court without adhering to respective clauses had simply mentioned S.302, P.P.C.

Federal Shariat Court observed that suppose that sentence was treated to have been awarded under S.302(b), P.P.C. in the case as per the provision of S.367 subsection (5), Cr.P.C. major penalty was to be awarded and the option for lesser punishment needed mitigating circumstances which required to be dealt with specifically, justifying the option so taken

Appeal was allowed by setting aside impugned judgment and the case was remanded to the Trial Court for de novo trial.

2021 YLR 1243 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 7Criminal Procedure Code (V of 1898), S. 367Commission of offence of QazfAppreciation of evidenceAppeal against acquittalDelay of about one month in lodging the FIREffectLanguage and contents of judgmentScopeAccused was charged for levelling allegation containing imputation of zina against the complainantRecord showed that report had been lodged after a delay of about one month

Trial Court observed that it was enough time for deliberation and consultation on the part of the complainant for false implication of the accused

Said approach of the Trial Court which conducted the trial of Qazf was utterly misplaced and wrong due to the nature of the alleged offence

Unlike other criminal cases, in Qazf the honour, reputation, respect, social norms and values associated with the victim and her whole family were deeply involved, hence, delay in filing complaint not only natural but permissible in Islam

Impugned judgment not fulfilling the mandatory requirements of S.367, Cr.P.C., thus, was not sustainable

Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367, Cr.P.C.

2021 YLR 1243 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 7Criminal Procedure Code (V of 1898), S. 367Commission of offence of QazfAppreciation of evidenceAppeal against acquittalLanguage and contents of judgmentScopeAccused was charged for levelling allegation containing imputation of zina against the complainant

Record showed that the Trial Court wrongly presumed that father-in-law of the complainant/ appellant was also the husband of daughter of accused, whereas on the contrary the contents of the statements of the witnesses and the cross-examinations revealed that the daughter of accused was the step-mother of the complainant/appellant

Due to said mis-reading of evidence, the reaching of Trial Court at a wrong conclusion was obvious

Trial Court had also completely ignored the evidence of SHO, who in his statement clearly stated that the accused came to him in Police Station on 05.03.2015, first he gave an application against complainant containing allegation of zina and doing abortion

Said application was returned to him because it contained the allegation of zina

Said statement was discussed by the Trial Court but no inference was drawn from it, the Trial Court committed non-reading of the material evidence of the case by just ignoring the same

Record transpired that the impugned judgment was violative of the mandatory provisions contained in S.367, Cr.P.C., because the Trial Court utterly failed to formulate the points for determination as required by that section and decision thereon with reasons

Circumstances established that the impugned judgment not fulfilling the mandatory requirements of S.367, Cr.P.C., thus was not sustainable

Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367 Cr.P.C.

2021 YLR 1243 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 7Criminal Procedure Code (V of 1898), S. 367Commission of offence of QazfAppreciation of evidenceAppeal against acquittalMedical evidenceLanguage and contents of judgmentScopeAccused was charged for levelling allegation containing imputation of zina against the complainant

In the present case, the Trial Court ignored the negative pregnancy test, which was the most relevant medical report in such case

Contents of the ultrasound report were clearly in favour of the claim of complainant/appellant showing her not pregnant

Trial Court disregarded the ultrasound report for containing a typographical error in date written on it

Circumstances established that the impugned judgment did not fulfill the mandatory requirements of S.367, Cr.P.C., thus, was not sustainable

Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367, Cr.P.C.

2021 YLR 1243 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 7Criminal Procedure Code (V of 1898), S. 367Commission of offence of QazfAppreciation of evidenceAppeal against acquittalTazkiyah al-Shuhood in the witnessesLanguage and contents of judgmentScopeAccused was charged for levelling allegation containing imputation of zina against the complainant

Record showed that the Trial Court acquitted the accused on the ground of absence of Tazkiyah al-Shuhood in the witnesses of the prosecution declaring it as a mandatory provision in any case of Hadd, however, the judgment was silent about the fact as to how the Trial Court reached to the conclusion that Tazkiyah al-Shuhood was missing from the prosecution witnesses

Correctly, the assessment of Tazkiyah al-Shuhood of the prosecution witnesses was very relevant and important in cases of Hadd, but at the same time, the Trial Court was supposed to give plausible and cogent reasons for declaring any witness, who did not fulfil the standards of Tazkiyah al-Shudood

Circumstances established that the impugned judgment did not fulfil the mandatory requirements of S.367, Cr.P.C., thus was not sustainable

Appeal was allowed by setting aside the impugned judgment and case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367, Cr.P.C.

2021 YLR 169 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 17(4)Penal Code (XLV of 1860), Ss.302 & 324Criminal Procedure Code (V of 1898), S. 367HaraabahAppreciation of evidenceLanguage and contents of judgmentScopeAccused was charged that he made firing on the brother of complainant, who was hit and died on the way to hospital

Record showed that as per allegation and contents of FIR, initially the case was rightly got registered under Ss.302 & 324, P.P.C., but later on erroneously converted into S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, Haraabah, which resulted into miscarriage of justice

Trial Court failed to pass judgment fulfilling the requirement of S. 367, Cr.P.C., which required that a judgment must contained therein points of determination and reasons for the decision thereupon

Provision of S. 367, Cr.P.C., was mandatory

Judgment not showing the points for determination of decisions thereon was not a "judgment" in the eyes of law

Impugned judgment was silent about the fact under which provision of law the accused was convicted and the punishment to which he was sentenced

Failure to specify the points for determination as required under S.367, Cr.P.C. was an omission which was not curable under S. 537, Cr.P.C. and absence of decision on the points for determination and reasons in the judgment amounted to an illegality which prejudiced the case of the accused

In the present case, no offence or provision of P.P.C. under which the accused had been convicted and sentenced was mentioned, hence, it was not clear that under which provision of P.P.C. the accused was sentenced

Appeal against conviction was allowed, in circumstances, by setting aside the impugned judgment and the case was remanded to the Trial Court for de novo trial.

2020 PCrLJ 952 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 367 & 537Language and contents of judgmentFinding or sentence when reversible by reason of error or omission in charge or other proceedingsSpecific sentence to be passedScope

Law provides for 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 S. 367, Cr.P.C., which cannot be cured under the provisions of S. 537, Cr.P.C.

2020 PCrLJ 952 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 148, 149, 324, 353 & 34Anti-Terrorism Act (XXVII of 1997), S. 7Criminal Procedure Code (V of 1898), S. 367

Rioting, armed with deadly weapon, common object, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism

Appreciation of evidence

Language and contents of judgment

Scope

Prosecution case mainly hinged upon Ss. 148 & 149, P.P.C. on the score that the accused being the members of unlawful assembly in prosecution of the common object of that assembly, being armed with firearms, rioted the police party and as a result thereof two police personnel got injured which established aggression of the accused party and therefore Ss. 148 & 149, P.P.C. were added

Firing at the police party, as per prosecution episode, was made by five number of persons of whom the accused was arrested on the spot

Trial Court had left Ss. 148 & 149, P.P.C. unattended but found that accused could only be awarded sentence under Ss. 324/34, 353/34, P.P.C. and Ss. 7(c), 7(h) of Anti-Terrorism Act, 1997 when Ss. 148 & 149, P.P.C. were proved

Trial Court although had specifically mentioned that the prosecution had proved its charges against the accused except S. 302, P.P.C. which meant that Ss. 148 & 149, P.P.C. were also proved but no finding with regard to Ss. 148 & 149, P.P.C. were given

Mandate of subsections (2) and (3) of S. 367, Cr.P.C. required that where the court found the accused guilty of one or more offences, then separate sentence must be explicitly awarded at the time of recording conviction

Accused person could not be presumed or implied to be convicted under Ss. 148 & 149, P.P.C.

High Court, without going into the merits of the case, remanded the case to the trial court for re-writing the judgment

Appeal was allowed.

2019 SCMR 1079 SUPREME-COURT Judicial Precedent

S. 367Language and contents of judgment

High Court affirming findings rendered by the Trial Court but not discussing evidence adduced by the prosecution as well as the accused

Supreme Court observed that in such circumstances it felt handicapped to objectively verify the points of determination as well as contentions raised by the accused and therefore considered it best to remit the present matter to the High Court so as to benefit the Supreme Court with a detailed discussion within the contemplation of S. 367 of the Code of Criminal Procedure, 1898

Appeal was allowed, the impugned judgment of the High Court was set aside, and the case was remanded with the direction that it shall be deemed to be pending before the High Court for decision afresh.

2012 PLD 307 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 367Language and contents of judgmentScopeGeneral principles relating to a judicial order elucidated

Every order passed under the provisions of any statute in judicial or quasi-judicial capacity must contain reasons, it should be objective and not merely subjective in nature

Subjective order cannot be termed as an order supported by reasons

Expression "reason" has not been defined in any law, but in common parlance it denotes an action taken or order passed by the person, officer or Authority which is reasonable and conforming to the requirement of reasonability

Reasonability can be gauged by examining the findings in the order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute, it would not be a proper order supported by reasons

Such an order would be a non-judicial, non-speaking and an un-reasoned order

In order to be reasonable there should be a finding demonstrating links between the material on which certain conclusions are based and the actual conclusions

In every case in which an appeal or revision lies, the Authority passing the order is required to record findings and discuss the material available on record, so that the appellate court may examine whether the order passed is in accordance with the material available on record or there is any misreading or non-reading of evidence, or any material fact available on record has been ignored causing miscarriage of justice.