Zia Ur Rehman vs State

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

JUDGMENT SHEET

Date of hearing: 10.09.2014

Petitioner(s) : Zia ur Rehman s/o Tehsil Khan by Sana Ullah Khan Gandapur Advocate.

Respondent(s) : State by Saif ur Rehman Khattak Addl: AG Idrees Khan By Muhammad Rasheed Khan Dirma Khel.

SYED AFSAR SHAH J:- This criminal appeal is directed against the judgment dated 8/9/2010 rendered by learned Sessions Judge Lakki Marwat, whereby the accused/respondent Idrees Khan involved in case F.I.R No. 405 dated 11/12/2008 under sections 302/324/148/149 PPC of police station Ghazni Khel was acquitted.

2.Relevant facts for the disposal of the instant appeal in brief are as under:-

3.It so happened that on 11/12/2008 at about 1630 hours, Zia-ur-Rahman, the complainant (PW.7) brought the dead bodies of Tehseel Khan, his father and one other Naseer Khan to police station Ghazni Khel and made a report to Saif-ul-Malook ASI (PW.1) to the effect that his father, deceased Tehseel Khan was proclaimed offender in a murder case and since he wanted to surrender himself to the concerned local police, therefore, he, his father, deceased Naseer Khan and PW Majeed Khan were on way to the police station concerned and when reached to the venue of crime, it was about 1500 hours. In the thoroughfare situated within the limits of Titter Khel, respondent-accused Idrees Khan alongwith his co-accused Mazal Khan, Muneer Khan, Imdadullah and Zafer Khan, duly armed with rifles of 7.62 bore,

started firing at them. Due to firing of the accused, Tehseel Khan and Naseer Khan were hit, fell on the ground whereas he and PW Majeed Khan luckily escaped unhurt. The accused after commission of the crime bolted away from the venue of ‘wardat’.

As per version of the complainant, when he visited the injured, they have already succumbed to the injuries. Motive behind the offence as stated by the complainant was previous blood feud between the parties. The occurrence in addition to the complainant is stated to have been witnessed by PW Majeed Khan. The complainant has charged the respondent-accused alongwith four others for commission of the offence.

After writing report of the complainant, it was read over and explained to him who after admitting it to

be correct signed the same in token of its correctness, whereafter ASI Saif-ul-Malook prepared injury sheets alongwith inquest reports of the deceased and referred them to RHC Titter Khel for post-mortem examination under the escort of Azizullah FC.

Investigation was started in the case and on conclusion of the same challan was submitted against the respondent/accused to the Court of learned Sessions Judge Lakki Marwat where at the commencement of the trial, the prosecution produced as many as nine witnesses whose statements were recorded and placed on file.

On close of the prosecution evidence,

respondent/accused was examined under section 342 Cr.PC wherein he denied the charges, professed innocence and stated to have falsely been implicated in

the case. He did not opt for his examination under section 340(2) Cr.PC, however, wished to produce defence and as a consequence thereof, he produced three defence witnesses.

The learned trial Judge on conclusion of the trial acquitted the respondent/accused, whereas Mazal Khan, Muneer Khan, Imdadullah and Zafer Khan were declared proclaimed offenders vide judgment herein impugned.

4.The moment the appeal is taken up for hearing, Mr.Sanaullah Khan Gandapur, learned counsel for the appellant, contended that the learned Sessions Judge has neither assessed nor properly apprised the evidence on the established principles for safer administration of criminal justice. He further added that the impugned

judgment could not be termed as a proper judgment within the meaning of section 367 Cr.PC. He went on to say that the learned trial Judge without formulating the points for determination or appraising the prosecution evidence has recorded his findings which, according to the learned counsel, is a glaring violation of the mandatory provision of the law contained in section 367 Cr.PC.

5.When confronted with the situation specially with the concluding para of the impugned judgment, learned counsel for the respondent-accused was not in a position to controvert the above legal aspect of the case.

He, however, made a request that since the respondent/accused had remained behind the bar for more than one year, therefore, in the given

circumstances, he shall not be taken into custody, rather be on bail.

6.Before adhering to the submissions of the learned counsel for the parties, it will be more appropriate to refer to section 367 Cr.PC, from the plain reading of which one could reach to an irresistible conclusion that compliance of the provision of the section referred to ibid in accordance with its terms is mandatory. It is imperative and not permissive. Here it would be beneficial to have a glance at section 367 Cr.PC which reads as follows:-

“S. 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”.

7.It appears from the impugned judgment that the learned Sessions Judge has produced the evidence adduced by the parties, arguments of their learned counsel and so far as the concluding part is concerned, the same on the face of it is complete departure from the mandatory provision of the law referred to earlier. For

convenience, the concluding para of the impugned judgment is reproduced below:- “It is true that the contradictions, taken in isolation, can be ignored. However, when read together, enough doubt is created, the benefit of which shall have to be extended to the accused. Whether the subsequent enquiry was malafide, whether the unexplainable contradictions in the testimony of the eye witnesses is a typographical error are presumptions that are not for the Court to make. The Court cannot take sides; it is not a prosecuting agency. It cannot ignore evidence given in black and white to favour either party.

It is true that the plea of alibi and the alternate story put up by the defence is not proved beyond reasonable doubt, but the defence does not need to prove it beyond doubt. Such a burden lies only upon the prosecution. For what has been

stated above and argued by the defence counsel, the benefit of doubt is extended to the accused facing trial, he is

acquitted.”

From the above quoted para, it is crystal that the impugned judgment is no judgment in the eyes of law and the learned Sessions Judge while recording the same has made complete departure from the provisions of section 367 Cr.PC which are mandatory.

In a case titled Abdur Rashid Munshi and Three others..Vs..The State (PLD 1967 Supreme Court 498), it was observed by their Lordships that:- “Under section 367, Criminal

Procedure Code which by virtue of

section 424 is applicable to judgments delivered by an appellate Court, it is

necessary that every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision”.

The above views have been reiterated by Their Lordships in a case titled Sahib Khan and four others...Vs..The State and others (1997 SCMR 871) in the following words:-

“For reasons to be recorded later, we set aside the impugned judgment in both these appeals for the reason that the impugned judgment does not contain valuation of evidence and discussion in the manner it should be and also does not assign reasons for arriving at the conclusion as required under section 367 Cr.PC”.

Wisdom is also derived from a case titled Ashiq Hussain and others..Vs..The State and two others (2003 SCMR 698).

Again in a case titled Khalid

Mehmood..Vs...The State (2004 P.Cr.L.J. 984(FSC), the following observations have been made by their Lordships:-

“As to the second limb of argument

in the contention that the learned trial Judge has also failed to formulate the points for determination, it may be pointed out here that use of the word “shall” in provision of section 367 Cr.P.C, in accordance with the terms, is mandatory”.

8.In view of the above and while deriving wisdom from the precedents referred to earlier, we accept

the appeal, set aside the impugned judgment dated 8/9/2010 passed by the learned Sessions Judge Lakki Marwat and, as such, the case is remanded to him for re- writing of judgment in accordance with law within the period of two months from the date record of the case is received in his Court. The accused is already on bail by the order of this Court which shall continue till his appearance in the Trial Court. On appearance in the trial Court, the respondent-accused shall submit bail bonds to the satisfaction of the learned trial Judge.

ANNOUNCED JUDGE

JUDGE