Mian Arshad Vs The State and another

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JUDGMENT SHBET

PESHAW HIGH COURT. PE SHAWAR

ITIDICIAL DEPARTMENT

Cri Anneal No.1479-P12023

Mian Arshad Vs The State and another

Date of hearingz 30.04.2024

Appellant by: Sahibzada Riazatul Haq, advocate State by: Mr. Niaz Muhammad, AAG Respondents by: Mr. Manzoor Bashir, advocate.

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JUDGEMENT

IJAZ 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 dt under section 376 read with 377'B PPC/53 CPA and sentenced to undergo rigorous imprisonment for 14 years and to fine of Rs. 500,000i- failing

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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 arears of land revenue.

Accused was further convicted under section 506 PPC 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-P12023 "Mst. Kalsoom Bibi ys- n4tau Arshad an d another" has been filed by complainant for enhancement of sentence I awarded to the accused appellant vide 4 impugned judgement dated 06.10.2023 to normal penalty of death alongwith compensation amount. Therefore, the criminal appeal as well as the criminal revision is decided by this single judgement.

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2.In the instant case, accused/appellant Mian Arshad Khan who was posted as Sweep er at Government Girls High School Purana Qasab Khana, Peshawar is charged for sexual abuse and commiffing rape of Hira Batool aged about l2ll3 yeaxs (student of 7h 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-l 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 I c 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 PPC and

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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

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 PPC|13 CPA and sentenced him to undergo 14 years R.I. However, the learned trial court neither awarded the conviction under separate a heads/sections leveled against the accused appellant nor advanced the reasons why death sentence or life imprisonment was not awarded to the accused appellant u/s 376 PPC. Section 376 PPC is reproduced as under:-

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(1)Whoever commits rape shall

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punished with death or prisonment for either for a term which not be less than ten years or re than twenty five years[or imprisonment for the period of his natural I and shall also be liable to -A) Whoever commits an punishable under sub-s ) of sub-s (2) of this section 377 section 377-B and in the urse of such commission any hurt punishable as offence under section 333, s 335, clauses (iv), (v) and of subsection (3) of section 7, section 337-C, clauses (v) (vi) of section 337-F., shall be hed with death or prisonment for life and fine.l I )lrr*r*t*l t . Whoever commits rape of a or a person with mental or disability shall be ished with death or prisonment for life and fine. ( Whoever being a public t including a police officer, edical officer, jailor, taking e of his official position c rape shall be punished death or imprisonment for and fine.l

6.ub section 3 of section 376 PPC provides t in case of committing rape of a minor, the shall be punished with death or 1m for life. Similarly, as per sub section

4of 376 PPC, a public servant if guilty of offence o rape shall be punished with death or for life. On record, it is established that the in the instant case is a minor girl. It is also from record that the accused appellant s a public servant being posted as sweeper in Government Girls High School Purana Qasab Peshawar, however, the trial court while pas the impugned conviction has totally ignored provisions of section36T Cr.P.C.

7 Section 367 of the Criminal Procedure Code, I provides the scheme for writing

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judgement the Presiding Officer of the court. d The same relevant is reproduced as under:- ,,367. Language of judgment- Con ts of Judgment: (1) Every such judgment shall, except as expressly provided by this be written by the ing officer of the Court or from the dictation of such ing officer in the language of the or in English; and shall the point or points, for the decision, and the reasons for the ; and shall be dated and

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by the presiding officer in open Court at the time of ncing it and where it is not by the presiding officer with own hand, every page of such udgment shall be signed by him.

(2)r shall specify, the offence (if any) which, and the section of the Penal Code or other law which, the accused is and the punishment to he is sentenced.

(3)r t in alternative: When the conviction is under the Penal Code and it is dou I under which of two or under which of two parts of the same section, of that Code the offence falls, the Court shaII distinctly express the same, and pass judgment in the tive.

(4)rf be a judgment of acquittal ir state the offence of which the is acquitted, and that he be set at liberty. : [xxxxxxxx] Omitted by Law Reforms Ordi. 1972, item 122. in the Province of Punj w.e.f 26.12.1975.

(s)the accused is convicted of an punishable with death, and Court sentences him to any ishment other than death, the ourt shall in its judgment state e reason why sentence of death not passed.

6)r the purposes of this section an; under Section 118 or 123, subsection (3), shall be ed to be a judgment."

The ove provision of law specifically lays down the ics of the judgement to be written by the Offrcer of a Court containing the point or points determination, the decision thereon and the reasons for the decision. As stated above, accused has been convicted to 14 years t on a single count, however, the trial court passed separate sentence under separate of law nor recorded the reasons for awarding lesser punishment as required under the of section 367 (5) Cr.P.C.

8 Division Bench of this Court, in case (a titled

9521having identical to the present case set aside the and remanded the case to the trial court re-writing of judgement. The relevant paras are as under:

,.9.8 ing inseparable and ln part of conviction, specifically awarded, it cann be assumed to the prej ice of the accused that he

was also sentenced under sec s 148 and 149, P.P.C. by a g the rule of implication bec the law provides the pass g of specific sentence for a offence and if it is not awa , it cannot be construed that same was impliedly aw ed as it is violative of the man tory provisions of subs ctions (2) and (3) of section 367, Cr.P.C. which cannot be cure by the provisions of under secti 537, Cr.P.C. Guidance d from the judgments of a t apex Court, reported as 2016 SCMR 1190 titled Irfan and another v. Muhammad Y and another, 2004 SCMR lti d Farrukh Sayyar and 2 oth Y. Chairman, NAB, bad and others and 1997 871 titled Sahab Khan and others v. The State and

10.ithout going into the of the case, we deem it ap priate to remand the case to th learned trial court for re- g of the Judgment.

o Th r€r appeal is allowed, rmp ed judgment of the d trial court is set aside and case is remanded back to the trial court with the to re-write the Judg ent in view of the above o tions, within one month of th receiving the case-file."

The Federal Shariat Court in a recent judgement in case titled "Saddam

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ln e State" '2024 P.C " held as under:

a( trial court was obliged to sta the reasons in its judgment as why death sentence was not pass d as required by subsection (s) section 367 of the Act V of

16.n this regard, we are fo by the judgment of Hon le Supreme Court in case of uhammad Ismail v. The Sta reported in 2017 SCMR 713 that frlt is a bedrock prin iple of law that, once a Sta te or rule directs that L r act must be and shall be in a particular way acting contrary to that is tmp Iy prohibited."

17.the light of section 367 of the V of 1898 and taking (t into consideration the dictum Iaid down hy the Hon'ble

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sup Court, we are inclined to ac pt these appeals, set aside the impugned judgment and d the case to the Trial Co for re-writing of judgment by into consideration the man tory provisions contained ln n 367, Cr.P.C. with the the case shall be treated pen before the Trial Court and e parties shall be allowed an pportunity of addressing argu nts."

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v 9 In view of what has been discussed above, we of the view that the impugned judgement eing passed in violation of the mandatory sion of section 367 Cr.P.C, cannot sustain in eye of law. Resultantly, this appeal is partially The impugned judgement dated 06.10.2023 set aside and the case rs remanded back to the leamed trial court for re-writing of judgement in accordance with the procedure laid down section 367 Cr.P.C. The connected Criminal sion in view of the above position, has become and is disposed

Senior / Puisne Judge

oun dge I)ated.

DB llon'ble Mr.Justice Ijaz war and Hon'ble Mr. Justice Ahmad 'Amir'