Ali Muhammad VS Nazir-ul-Islam

JUDGMENT SHEET

IN THE PESHAWAR HIGH COTJRT,

MINGORA BENCH (DAR-UL-Q AZA), SWAT

(ludicial Department) Cr.R. No. l-1[U2014

JUDGMENT

Date of hearing : 11.12.2017 Petitioner: - (Ali Mohammsd) bv Mr. Amir Gulub Khan Advocute.

ResDondents: (Nazir-ul-Islsm & I unotheil bv Mr. Sher Muhsmmad Khan (Shunsla) Advocute and Mr. Rafiq Ahmud. Astt: Advocute General.

MOHAMMAD IBRAHIM KHAN, J.- Impugned herein is the judgment dated 04.12.2013 passed by the learned Sessions Judge/Zrla Qazi Shangla Camp Court at Swat, whereby the accused/Respondent No. I Nazir-ul-Islam has been convicted and sentenced under section 302 PPC to 14 years RI on two counts alongwith fine of Rs. 300,000/- (three lacs) on two counts payable to the Legal Heirs of deceased or in default thereof shall further undergo two years SI. The accused/Respondent was further l/- convicted under section 353 PPC to six months RI. Likewise, he was also convicted and sentenced under section 13 A.O to three years N*.b (D-8.) non'bl.:u.. J utli.. nroh,nnrd rbr.tim Eon'bl. Mr. lurlic. Ilhli.q tbnhin

rigorous imprisonment, all the sentences shall run concurrently, however, benefit of section 382-8 Cr. P.C. was extended to him.

1 Here this is a Criminal Revision for enhancement preferred by the

complainant/Petitioner within the meaning of section 435 read with section 439 of the Code of Criminal Procedure with the following prayer:- "For the reasons stated above it is therefore most humbly prayed that by accepting this Revision Petition the judgment/order of the trial Court dated 04.12.2013 may graciously be modified and set aside to the extent of sentence and Respondent No. I be awarded with the capital sentence of death or any other order this Honorable Court may deem just and proper be passed by accepting this Revision Petition."

1 Having heard arguments of learned \ counsel for the Petitioner, leamed Astt:

Advocate General for the State and leamed counsel for the Respondent No. l, record with their assistance gone through.

Nr*rb (D.4.) on'bl. Mr. Jutlic. Monrndrd rbrrtim Xt.n llon'bl. tlr Jurlic. hhlirq lbrriin

4 Before arguments were to be further heard on merits, learned counsel for the Petitioner pointed out that impugned judgment has been rendered by the leamed trial Court in violation of section 367 Cr.P.C as the learned trial Court has not determined points in the impugned judgment for determination, rather the findings were delivered in slipshod manner without applying his judicial mind to the real facts and circumstances of the case. Before delivering any further findings in this behalf, it would be appropriate to reproduce section 367 Cr. P.C for ready reference:-

5,367. Lansuase of iudsmenl:

Contents of I smen I (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 fficer in the language of the Court, or in English, ary! shall conlain lhe Poinl or ooints fuLne&rullati9!., the decision thereon and the reasons for the decision and shall be date and signed by the presiding fficer in N. b (D.B.) gon'bk !rr. Jusri..Motrmn.d fio.'bl. Mr. Juni..Ilbti.q lbnhio

open Court at the time of pronouncing it and were it is not written by the Presiding Officer with his own hand, every page of judgment shall be signed by him.

(2)It shall specify the offence (if any) ofwhich, and the section of Pakistan Penal Code or other law under which the accused is convicted and the punished to which he is sentence.

fu n Aert i n e X_e mpllgiZE!!)

5 It is the main theme of section 367 Cr.P.C that the judgment of the Court shall contain the points for determination, the decision thereon and the reasons for the decision. In this respect reliance has been placed on case law cited as lW

Khan and 4 others vs The Stute and otherstt.

The relevant of the said judgment speaks of:- " For reasons to be recorded later, we set aside the impugned judgment in both

these appeals for the reason that the impugned iudgment does not contain valuation of evidence and discussion in the manner it should be and also

Nr*.b (D.B.) Eon'bl. Nlr. Julric. Mohrmnrd llon'bl. Mr, Justic. Ishrirq lbnhim

does not assign reasons for arriving at the conclusion as required under section 367 Cr.P.C.

On the same analogy another dictum of the Hon'ble Supreme Court of Pakistan can be referred to cited as 2003 SCMR 698 "Ashiq and others vs The Stste and futo olhers'.

Likewise, the use of word "shall" in section 367 Cr.P.C has been purposely used in order to put emphasis that compliance of the provision of ibid section is mandatory and non- compliance whereof would render the judgment inherently defective and illegal. In case titled "Khalid Mehmood vs The State" Q004 P Cr.

LJ 984 this principle has been enunciated in the following manner:- '/ As lo lhe second limb of

e atgument in lhe conlention that the learned trial Judge has also failed to formulate the points for determinalion, it may be pointed oal here lhat use of the word "shall" in provision of section 367 N.r.b (D.4.) Hon bl. Mi Jrllic. Mohrnhrd lbniio tlo.'bl.Mr.Ju i.. khli.q lbnhi6

Cr,P,C, in accordance with the terms, is mandalory.'/ In this behalf reliance can safely be p laced on case titled as " Farrukh Sawur und 2 others vs Chuirman NAB Islamabsd and other (2004 SCMR 1\ , wherein it has been held:-

" It is mandalory requirement of seclion 367 Cr.P.C that a Court while writing a judgmenl shall refer to the point or poinls of determination, record decision lhereon and also give reasons for the decision. The Court shall also specify lhe offence of which, and lhe section of the Pakislan Penal Code or other law under which the accused is convicled and the punishment to which he is senlenced. In the presenl case the learned trial Courl overlooked the mandatory provisions of section 367 tA Cr.P.C and rendered o judgment which falls short of lhe requisite standard, Failure to specifu lhe points for delermination as required under section 367 Cr,P.C is an N.e.b (D-4.) rlon'bl. M. Jurli..Mohronrd lbrrldn Khrn llon'bl. NrL Ju!lic. hhli.q lbrrhim

omission which is not curable under section 537 Cr.P.C and absence of decision on the points for determination and reasons in the judgrnent amount to an illegality which prejudice the case of the accnsed"

6.In the light of above-referred dictums of the Hon'ble superior Courts learned counsel for the accused/Respondent No. 1 and learned A.A.G tried their level best to distinguish the case of accused but they badly failed to satisfy the Court in this regard in respect of an illegality being committed by the leamed trial Court through the impugned judgment in view of non-compliance of section 367 Cr.P.C.

1 Thus, in the above backdrop, without dilating upon the merits of the case/evidence, lest it may prejudice the case of fId either side, we are of the absolute view that the impugned judgment rendered by the learned trial Court is violative of the statutory provisions of section 367 Cr.P.C., therefore, is N.,rb (D.B.) Eo.'bl. Mr Jorri..Moh.nmld Ibnhio Hoo'bl. Mr, Ju.iic. Ithlirq Ibnhin

not sustainable in the eye of law. Thus, on acceptance of this criminal revision the impugned judgment of conviction is set aside and the case is remitted back to the learned trial Court for decision afresh as per spirit of section 367 of the Code of Criminal Procedure within a shortest possible time after affording fair opportunity of hearing to the leamed counsel for the parties including the State. The parties are directed to appear before the learned trial Court on 04.01.2018

Announced ?^ Dt: j,1.12.2017 JUDGE

JUDGE

t'rys Nrw.b (D.B.) gon'bl. Mr. Jo!ri.. Moh.nmrd Ibnhin Kh.n Eon'bl.Mr.