Shams-ud-Din Vs. The State,

Judgment Sheet

Pn,suawAR HIGH Counr , AnBoTTABAD BBNcn

JUDICIAL DEPARTMENT

Criminal Appeal No.208-4/2022

Shams-ud-Din... (Appellant) Versus The State etc... (Respondents)

Present: Mr.Shad Muhammad Khan, Advocate General for appellant.

Syed Wajahat Ali Shah, Assistant Advocate General for State.

Nemo for complainant.

Date of hearing: 21.06.2023.

JUDGMENT

Mun^lvrvrlD IJAZ KnnN J .- Through the instant criminal appeal, the appellant has challenged the order and judgment dated 17.08.2022 passed by leamed Additional Sessions Judge-I, Mansehra whereby he was convicted and sentenced, in a case registered vide FIR No.254 dated 27.12.2019 under sections 377 132413421337-A(iy337-F'(1)120112021 .o) 5061109 PPC read with section 53 of The Child Protection Act, at Police Station Phulra, District Mansehra, as under:

(.lamil) (5.8.) Ilon'ble Mr.Justice h[uhammud l.iaz Khan

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(i)Fourteen (14) years R.I and a fine of Rs.200,000/- (two hundred thousand) in default thereof to undergo 6 months S.I, under section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010,

(ii)Two (02) years S.I. as Ta'zir and Daman amounting Rs.50,000/- under section 337-A(i) PPC to be dealt-with under section 337-Y(2) PPC for payment to the victim family,

(iii)One year S.I and Rs.20,0001- and in default thereof to undergo one month S.I. under section 506 PPC.

2.Precisely, the facts of the present case are that complainant Ali Gohar lodged a report with the local police in shape of Murasila in which he charged appellant alongwith two unknown persons for committing unnatural offence with his nephew namely Yaoos son of Abdul Qayyum as well as for beating him. In the wake thereof, instant case was registered. After registration of the case, a full- V fledged investigation was carried out and then challan was put in court against the respondent. In support of its case, prosecution produced as many as twenty witnesses and after hearing both the (Jamil) (5.8.) IIon'ble Mr.Justice Muhamntad liaz Khan.

parties, the appellant was convicted and sentenced as mentioned in Para No.1 of this judgment by the learned triai court vide impugned order and judgment dated 17.A8.2022 The appellant has now called in question the aforesaid order and judgment through the instant appeal.

3.Arguments of leamed counsel for the appellant and Assistant Advocate General were heard in detail and record perused with their able assistance, whereas complainant appeared before the court on 27.02.2023 and stated that he cannot engage a counsel and would rely on the arguments of learned Assistant Advocate General.

4, At the very outset of his arguments, learned counsel for the appellant invited the attention of this courl towards the "charge" framed in this case which shows that the charge has been framed under six different heads including under section 377 PPC r as well as under section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, however, while recording the convictions, the learned trial court has neither convicted the appellant nor acquitted him under section 377 PPC and instead, the learned trial court has written just (Jamil) (5.8.) Hort'ble Mr.Justice Muhatnmad liaz Khan.

one sentence that since the appellant has been convicted under section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act.

2010 which also covers all asoects of the offence of there is

separate punishment under section 377 PPC and thus the impugned order/judgment of the learned trial court falls short of legal requirement as required under section 367 Cr.PC.

5.The aforesaid objection of the learned counsel for the appellant carries weight as on one hand the whole prosecution case revolves around the allegation of sodomy and the evidence so produced also shows that the complainant seeks the prosecution of the appellant for the offence of sodomy as a substantive and primary offence, whereas other offences as secondary and on the other hand, under section 367 Cr.PC it was the statutory duty of the learned trial court either to convict or acquit the appellant under section 377 PPC. The observations of the learned trial court that since the appellant has been convicted under section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act,2010 which also covers all aspects of the sodomy are not legally correct as (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan.

admittedly offences under section 377 PPC and 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Ac!2010 are two distant offences. In order to clearly understand the difference between the offences defined under section 377 PPC and section 53 of the ibid Act, it would be appropriate to reproduce section 377 PPC and section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act,2010 as under:

"W. Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.

Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section."

"53. Sexual abuse. Whoever commits an offence of sexual abuse shall be punished with imprisonment for a term which may extend to fourteen years and shall not be less than seven years and shall also be liable to fine which shall not be less than ten hundred thousand rupees."

(Jamil) (5.8.) Hon'ble Mr.Justice Muhanunad ljaz Khan.

The above referred penal provision mainly speaks about "sexual abuse" of a child by another person which has been defined in clause (y) of subsection (l) of section 2 of the Act of 2010 which reads as under:

"(y) "Sexual abuse" means employing, using, forcing, persuading, inducing, enticing, or coercing any child to engage in, or assisting any other person to engage in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or stimulation of such conduct either independently or in conjunction with other acts, with or without his consent."

Perusal of the above penal provisions under the two laws in light of definition of sexual abuse clearly shows that sodomy and sexual abuse are two different offences independent of each other and thus the learned trial court has wrongly held that in case of conviction under section 53 of The Khyber -[L/ Pakhtunkhwa Child Protection and Welfare Act, 20t0, there is no need to record any conviction under section 377 PPC, specially when separate charge was also framed under these provision of 1aw

(Jamil) (5.8.) Hon'ble Mr.Justice Muhammad Iiaz Khan.

6.The aforesaid statutory obligation and duty is enrooted in subsections (2) and (3) of section 367 Cr.PC and the same being relevant for the matter in hand, are reproduced below:

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 points for determination. the decision thereon and the reasons for the decision; shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and 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.

The aforesaid provisions of law o2 contemplate that it is/was the statutory duty of the trial court to record reasons as well as points of determination on the basis of which it is convicting or acquitting an accused person and it is/was also its duty to speci$, the offence and the section of law under which an accused is (Jamil) (5.8.) Hon'ble Mr..Iustice Muhammad ljaz Khan.

convicted and such exercise is to be carried out by placing in juxtaposition the contents as well as various heads of charge framed in the case, however, in the present case though charge for two different offences i.e. 377 PPC and 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 was framed but while recording conviction, the appellant was convicted tmder section 53 of the ibid Act of 2010 and such conviction was found as sufficient for section 377 PPC as well which approach of the leamed trial court goes a long way to defeat many provisions of the Code of Criminal Procedure as well as of The Constitution of Islamic Republic of Pakistan, 1973 and thus such cryptic order/judgment could not legally sustain. In the case titled I "Irfan_44d_e4oflrer v. Muhammad Yousaf and another" reported as 2016 SCMR 1190, the Apex Court has held that under the provisions of section 367(2) and (3), Cr.PC it is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording (Jarnil) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan.

conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions cited above. In this case, no separate sentence was awarded to the appellants under section 7(a), A.T.A. by the Trial Court or the High Court, as explained above. This legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the learned High Court in the second round when the appellants were seeking acquittal on the basis of compromise under section 302(b), P.P.C. alone, because it cannot be construed nor it is permissible under the law to hold that the appellants were impliedly sentenced to imprisonment for life under section 7(a), A.T.A. as well. The provision of section ,2 367, Cr.P.C. provides that the Court determine first the guilt c'f the accused and then to pass judgment of conviction where-after the sentence shall follow. Being inseparable and integral part of conviction, unless specifically awarded, it (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan.

cannot be assumed to the prejudice of the accused that he/they were also sentenced under section 7(a), A.T.A. 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 the very judgment to that extent becomes illegal and violative of the mandatory provisions of subsections (2) and (3) of section 367 , Cr.P.C.

7.In view of the above, since the impugned order and judgment of the learned trial court falls short of the aforesaid legal requirements, therefore, the same is set aside and this case is remanded back to the leamed trial court for rewriting of the judgment and who also shall thereby give a definite decision either for the acquittal or conviction under/for each head of charge, however, such exercise shall be completed within a period of two months positively.

(Jamil) (5.8.) Hon'ble Mr.Justice Muhammad Iiaz Khan.

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8.The court was informed that the appellant is in continuous custody since the date of his arrest and thus till date he has completed more than four years of his imprisonment, therefore, it is directed that the appellant shall be released on bail provided he fumishes bail bonds in the sum of Rs.500,000/- (five hundred thousand) with two sureties each in the like amount to the satisfaction of learned trial court, the trial court shall ensure that the sureties are close relatives of the appellant and they must also be reliable and men of means.

ANNouNcrn 2t.06.2023. a

(Jamil) ry

JU

(5.B.) Hon'ble Mr.Justice Muhammad ljaz Khan.