Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 72 & 73 of 2017

                   Confirmation case No. D-08 of 2017

 

Present.

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Khadim Hussain Tunio.

Date of hearing:                  13.11.2019

 

M/S A.R Faruq Pirzado and Ghulam Hyder Daudpoto counsel for appellants.

Syed Sardar Ali Shah Rizvi Deputy Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J.  Mukhtiar and Ghulam Hyder appellants were tried by learned Judge Anti-Terrorism Court Naushehro Feroze in special cases Nos. 71 and 72 of 2015 for offences under Sections  302,147, 148, 149 PPC read with section 7 of Anti-Terrorism Act, 1997 and 24(i) Sindh Arms Act,2013.  After regular trial vide Judgment dated 30.05.2017, appellants were convicted under sections 302(b) PPC read with section 7(1)(a) of Anti-terrorism Act,1997 and were sentenced to death. They were ordered to pay compensation of Rs. 100,000/-(Rupees one lac) each as provided under section 544-A Cr.P.C to the legal heirs of deceased Hafiz Ghulam Nabi and Muhammad Ilyas, in case of default thereof both appellants were ordered to suffer further R.I for one year. However, death sentence was subject to confirmation by this Court. Trial Court made reference to this Court for confirmation of death sentence awarded to the appellants Mukhtiar and Ghulam Hyder in terms of Section 374 Cr.P.C. Appellant Mukhtiar Noondho was also convicted under section 23(1)(a) read with section 25 Sindh Arms Act 2013 and sentenced to ten years R.I. Appellant Mukhtiar was extended benefit of Section 382-B Cr.P.C while the case against the absconding accused was kept on dormant file.

2.                     Mr. Abdul Rehman Faruq Pirzado Advocate for appellants argued that judgment of trial Court is violative of mandatory provisions of sub-section(2) and (3) of Section 367 Cr.P.C. He has argued that appellants were not convicted and sentenced separately.  Mr. Pirzado referred to the point No.4 of the judgment and argued that that appellants have been convicted under section302 (b) PPC read with Section 7(1)(a) of Anti-terrorism Act,1997. It is submitted that appellants should have been convicted and sentenced separately for both the offences because both offences are distinct and separate from each other. Mr. Pirzado submitted that illegality committed by the trial Court is not curable and prejudice has been caused to the appellants and prayed for remand of the case to the trial Court for re-writing the judgment in accordance with law. In support of his contention he relied upon the judgment reported in the case of Messrs MFMY INDUSTRIES LTD and others vs. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550) and Irfan and another vs. Muhammad Yousif and another (2016 SCMR 1190)

3.                     Syed Sardar Ali Shah Rizvi Deputy Prosecutor General conceded to the contentions raised by Mr. Pirzado and stated that trial Court has convicted the appellants U/S 302(b) PPC read with Section 7(1)(a) of Anti-terrorism Act, 1997 and submitted that conviction and sentence in both distinct and separate offences have not been passed separately as per mandatory provision of Section 367 Cr.P.C. Learned D.P.G conceded for the remand of the case to the trial Court for limited purpose for re-writing the judgment in accordance with law.

4.                     After hearing learned counsel for the parties, we have perused the impugned judgment dated 30.05.2017. In para No.4 of the impugned judgment, convictions and sentences were recorded by the trial Court in the following terms.

“ 21.                In view of my findings on points No.1 to 3 I have come to the conclusion that prosecution has proved its case against both the accused beyond shadow of reasonable doubt. I, therefore, convict accused Mukhtiar son of Sonharo Noondho and Ghulam Hyder son of Sultan Noondho for the offence punishable u/s 302(b) PPC R/W Section 7(1)(a) of Anti-terrorism Act, 1997 and award death sentence. They shall be hanged by neck till their death. Accused Mukhtiar Noondho and Ghulam Hyder Noondho shall also pay compensation of Rs. 100,000/- (Rupees one lac) each as contemplated under section 544-A Cr.P.C to the legal heirs of deceased Hafiz Ghulam Nabi and Muhammad Ilyas, in case of default of payment of said compensation, accused shall suffer further R.I for one year and if the compensation amount is recovered, it shall be paid to the legal heirs of both the deceased in accordance with law. The death sentence shall be executed after confirmation of the same from Honourable High Court of Sindh. Accused Mukhtiar Noondho is further convicted for the offence punishable u/s 23(1)(a) R/W S. 25 Sindh Arms Act 2013 and sentenced to suffer R.I for ten years. Accused Mukhtiar Noondho is given benefit of section 382-B Cr.P.C. Accused are produced in custody, they are remanded to Central Prison Sukkur with conviction slip and warrant to serve out the sentence.”

 

 

5.                                 It is clear that trial Court has convicted appellant U/S 302(b) PPC read with Section 7(1)(a) of Anti-terrorism Act, 1997 and sentenced to death. Offences 302(b) PPC and 7(1)(a) Anti-terrorism Act, 1997 are distinct and separate. Sentence of death in both offences are separate. In the case of Irfan and another vs. Muhammad Yousaf and another (2016 SCMR 1190) the Hon’ble Supreme Court has held as under:-

 

“6.      Under the provisions of section 367(2) and (3), Cr.P.C. it is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording 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 367, Cr.P.C. provides that the Court determine first the guilt of 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 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.

 

6.                          In the present case specific sentence for a distinct offences 302 PPC and 7 Anti-terrorism Act, 1997 have not been awarded which is violative of mandatory provisions of subsections (2) and (3) of Section 367 Cr.P.C.

7.                For the above stated reasons and keeping in view the legal prosition, criminal appeals Nos. D-72/2017 and D-73/2017 are partly allowed. Convictions and sentences recorded by the trial Court vide judgment dated 30.05.2017 are set aside. Case is remanded back, trial Court is directed to re-write the judgment within one month after hearing the learned counsel for the parties in accordance with law. So far confirmation Reference No. D-08 of 2017 is concerned, in the view of remand of the case, the same is declined. In the end Mr. Pirzado submits that parties intend to file compromise application before the trial Court, as offence U/S 302 PPC is compoundable. Parties would be at liberty to file it before the trial Court. However, the same shall be decided by the trial Court, strictly in accordance with law.

                                                                                                            J U D G E

 

                                            

                                     J U D G E

 

Irfan/PA

 

 

 

In Criminal Administration of justice since question is always that of legal disposal of  ‘charge/offence’ therefore, legislature though did not provide any specific mechanism for writing the 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".

 

7.                      Therefore, it can be concluded safely that; if there is a departure from above said principle, then there shall never be 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 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.