IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Jail Appeal No.D- 79 of 2014
Before;
Mr.
Justice Muhammad Iqbal Mahar
Mr.
Justice Irshad Ali Shah
Appellant: Shahnawaz Almani, through Mr. Rukhsar Ahmed M.Junejo, Advocate
Respondent: The State,
through Syed Sardar Ali Shah,
Deputy Prosecutor
General
Date of hearing: 20.02.2019
Date of decision: 20.02.2019
JUDGMENT
IRSHAD ALI SHAH, J-. The appellant by way of
instant Criminal Jail Appeal has impugned the judgment dated 26.11.2014 passed
by learned Judge, Anti-Terrorism Court Naushahro Feroze whereby he has been convicted and sentenced as
under;
“present accused namely Shahnawaz
is convicted for the offence punishable u/s 302(b) PPC r/w S.6/7(a) ATA 1997
and sentenced to R.I Imprisonment for life, also convicted for the offence
punishable u/s 201 PPC and sentenced to R.I for three years and to pay fine of
Rs.50,000/- (fifty thousand), in default to suffer S.I
for six month more. All the sentence awarded to
accused shall run consecutively with benefit of section 382-B Cr.P.C.”
2. The
facts in brief necessary for disposal of instant criminal jail appeal, are that
the appellant allegedly kidnapped baby Marvi a girl
of seven years of age, subjected her to rape, committed her murder and then put
an attempt to cause disappearance of her dead body with a view to save him from
legal consequences, for that he was booked and reported upon by the police.
3. At trial, the appellant did not
plead guilty to the charge and prosecution to prove its case, examined
complainant Rasool Bux and
his witnesses and then closed the side.
4. The
appellant during course of his examination u/s 342 Cr.PC
denied the prosecution’s allegation by pleading innocence, but did not examine
anyone in his defense or himself on oath in disproof of the prosecution
allegation.
5. On conclusion of trial, the
learned trial Court convicted and sentenced the appellant by way of impugned
judgment, as stated above.
6. Heard learned counsel for the
parties and perused the record.
7. Since,
the prosecution has strongly pleaded the conviction against the appellant to be
not within spirit of law and procedure therefore, it would be in all fairness
to examine this aspect before dilating any comments on merits of the case. At
the very outset, it may well be mentioned that by now it is well established
that cognizance
is taken of an offence and not of offender therefore, the Chapter-XIX of Code has placed Section
221 at top thereby requiring
that;
“Every charge under this Code shall state the offence with which the accused is charged.”
8. Reason
behind above seems to be nothing but that every ‘offence’ carries its own
independent punishment hence always requires its legal disposal either in acquittal or conviction. It needs not be
mentioned that no lis could legally be terminated except by
way of a verdict of the Court. It is a decision through which the disputes /
charges, brought before a Court of law, are determined. Such verdict
/ decision, in legal parlance, is called a ‘judgment’.
Therefore, such a ‘judgment’ must always provide a satisfactory answer to all claims /
charges, brought before it; else the purpose thereof shall fail. Reference in
this context may be placed upon case of Messers MFMY Industries Ltd and others Vs. Federation of Pakistan through Ministry of Commerce and others (2015
SCMR-1550), wherein it has been observed that;
5. Termination of a lis undoubtedly is
through a verdict of a court which is a decision
disposing of a matter in dispute before it (the Court) and in legal
parlance, it is called a JUDGMENT’. It
is invariably known that a Judge finally speaks through his judgment. According
to Black’s Law Dictionary, a judgment has been defined to mean ‘A
court’s final determination of the rights and obligations of the parties in a
case’ and per Henry Campbell Black, A Treatise on the Law of Judgment ‘An action is instituted for the enforcement
of a right or the redress of an injury. Hence a judgment, as the culmination of
the action declares the existence of the right, recognizes the commission of
the injury, or negatives the allegation of one or the other. But as no right
can exist without a correlative duty, nor any invasion of it without a
corresponding obligation to make amends, the judgment necessarily affirms, or
else denies, that such a duty or such a liability rests upon the person against
whom the aid of the law is invoked.’ These definitions are adequately
self-explanatory. In our procedural law (civil) , judgment as
defined in Section 2(9) of Code of Civil Procedure means “the statement given by the judge of the rounds of a decree or order’. It should be emphasized here that a
judgment should supply adequate reasons for the conclusion reached and
arrived at and should be reflective of application of proper judicial mind by
the Judge and it should not be a mechanical
and not speaking judgment in nature.’
9. In
Criminal Administration of justice since question is always that of legal
disposal of a ‘charge/offence’ therefore,
legislature though did not provide any specific
mechanism for writing judgment yet have made certain things mandatory which includes disposal of ‘offence’
either in acquittal or in conviction. The legal position, being so, shall
become crystal clear with reference to relevant subsection (s) of Section 367
of the Criminal Procedure Code which are:-
(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”.
(4) If it be a
judgment of acquittal, it shall state the offence
of which the accused is acquitted and
direct that he be set at liberty”.
10.
Therefore, it can be
concluded safely that; if there is a departure from above said principle, then there
shall never be a satisfactory disposal for the offence for which the
accused was charged and tried rather the prosecution and even the defence would be legally justified in seeking an answer
to this. It is added that meaning of fair-trial
shall also fail, if parties appearing before the Court of law are kept
confused of their respective claims / charges. If so, it shall be a negation to what one expects from
a ‘judgment’.
The emphasis was further detailed by honourable
Apex Court in case of Messers MFMY
Industries Ltd and others (supra)
by observing that;
“It may be reiterated that without a judgment, there is no concept
of justice and / or fruitful outcome of litigation which without any fear of
contradiction means that the State lacks and effective justice system. In such a situation, I would, rather,
go to the extent of saying that if the Judge/ the Court does not pronounce a
judgment for resolving the legal and factual issues involved in a dispute
before it at all, the very
purpose of the judicial branch of the State will be frustrated and eroded . If there is no judgment in terms
of law, the entire judicial setup shall be rendered farce and illusionary,
which obviously shall in turn disturb the equilibrium between the pillars of
the State upon which it rests, resulting into serious impairment of the
functioning of the State.
11. Having
said so, now is being examined the impugned judgment of learned trial Court
(Judge). The perusal whereof shows that the point for determination, framed by
learned trial Court (Judge), reads as under;
1. Whether
baby Marvi died unnatural death?
2. Whether
on 09.09.2014, at 07.00 p.m time present accused Shahnawaz Almani after kidnapping
baby Marvi aged about 7 years near the house of
complainant in Moro town did commit her qatl-i-amd and her dead body was also concealed by him, which was
recovered at his pointation, thereby sense of fear
and insecurity also spread in the society?
3. Result?
12. From
above, it is apparent that the charge included different and distant offences,
allegedly committed by the appellant, therefore, it was always obligatory upon
the learned trial Court to have decided ‘acquittal or conviction’ of sent up
accused persons from charge of such independent
offences. At this point, it is conducive to refer to the conclusion, so
drawn by learned trial Court, in his judgment, which reads as under;
“That the first point of last seen, accused
taking baby Marvi touches the other point of recovery
of dead body, at his pointation from the place of
incident being in exclusive knowledge of accused not under the knowledge of
general public or complainant party, has made out the unbroken chain,
sufficiently to connect the accused in this offence.”
13. After
forming above said conclusion, the learned trial Court convicted and sentenced
the appellant as is detailed above.
14. Prima facie, the appellant has neither
been acquitted nor convicted for offence an punishable u/s 364 PPC
(for kidnapping baby Marvi) and 376 PPC (for committing rape with baby Marvi),
which is a clear departure from mandatory requirement of Section 367(2) and (4)
of Criminal Procedure Code. In that
situation, it could be concluded safely that the provision of Section 367 Cr.PC has not been complied with by learned trial Court in
letter and spirit. By committing such omission, the learned trial Court has committed material illegality which could
not be overlooked or cured by this Court.
15. Learned
counsel for the parties when faced with the above situation, consented for
remand of the matter for rewriting of the judgment.
16. In
view of above, the conviction and sentence recorded against the appellant by way of impugned
judgment are set-aside with direction to learned trial Court to rewrite the
judgment within 30 days, after providing chance of hearing to all the
concerned.
17. The
instant Criminal Jail Appeal is disposed of accordingly.
Judge
Judge
ARBROHI