ORDER SHEET
IN THE HIGH COURT OF SINDH KARACHI
Cr. Appeal No. 327 of 2011
Date of hearing : 20.04.2012
Appellant : Dilsher
Respondent : The State.
Mr. Ghulam Rasool Mangi, Advocate for the Appellant.
Ms. Seema Zaidi and Mr. Abrar Ali Khichi, APG.
Muhammad Ali Mazhar,J.:- This Cr. Appeal has been brought to challenge the impugned judgment, passed by Ist. learned Additional Sessions Judge, Thatta on 13.07.2011 in Sessions Case No. 41 of 2011.
2. Concisely, the facts of the case are that the appellant on behalf of the State lodged the F.I.R No.15/2011 at police station Mirpur Sakro under Sections 324, 353, 411, 34, 337-A (ii), 337-F (ii), PPC. On 28.02.2011, the complainant registered the FIR in the capacity of Sub Inspector police station Mirpur Sakro in which he reported an incident. The learned trial court vide impugned judgment acquitted the accused persons from the charge, however, while acquitting the accused persons, the learned trial court simultaneously convicted the appellant/complainant on the ground that he misused his official powers and made a false complaint, therefore he was sentenced to suffer simple imprisonment for six months. The observation of the learned trial court is reproduced as under:-
“Before parting of this order it is worthwhile to mention here that during the course of proceedings it is observed that complainant namely Dilsher not only lodged false case against the accused persons but involved them in a series of cases wherein they have been acquitted, since the complainant has misused his official powers and excess committed by him being a police official in relation to this function and duties as admitted by him that he made false statement before this court during his evidence. He is taken into custody and remanded to the jail to serve sentence for six months. The D.I.G. concerned is directed to take appropriate and necessary action against such delinquent officer in accordance with law, as such kind of black sheep should not be spar, who earning bad name and stigma on the face of police department. The copy of this order be sent to the D.P.O. Thatta and D.I.G. Hyderabad Sindh Police, for action and compliance.”
3. The learned counsel for the appellant argued that being a police officer, the appellant rightly set into motion the machinery of law and lodged the FIR against the culprits but they were acquitted by the trial court, however, he submits that without affording or allowing any opportunity of defence, the learned trial court convicted the appellant.
4. The learned APG also of the view that before convicting the appellant, the mandatory provisions of law were not followed and not only the appellant was convicted but serious drastic actions were also recommended against him and matter was referred to D.I.G. concerned to take proper and necessary action against the delinquent officer.
5. I have seen the impugned judgment in which it is clearly discernible and perceptible that no opportunity was given to the appellant and even no charge was framed against him for lodging a false complaint, however, in the judgment of acquittal, the appellant was convicted which shows that before reaching any sanguine culmination against the present appellant whether he lodged the FIR with bona fide intention or mala fide, he was convicted.
6. Section 367 of CR.P.C pertains to the language and contents of judgment, which reads as under:-
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.
(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.
(3) Judgment in alternative. When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which or two parts of the same section of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(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.
(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed.
(6) For the purposes of this section, an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment.
7. It is plainly provided in aforesaid provision of law that judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and subsection (2), unequivocally speaks that the judgment 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. It is obvious from the impugned judgment with regard to the appellant that neither it is mentioned that under which section of law the appellant was convicted nor any charge was framed, even no statement of appellant was recorded under Section 342 Cr.p.c, which is sheer illegality floating on the surface of record. Despite this incongruity, the appellant was convicted. The word judgment used in Section 367 Cr.P.C. means the judicial verdict deciding a case finally so far as the court seized of the case is concerned. While writing the judgment it is incumbent upon the Court to ponder over all possible situations and probabilities for reaching just and proper conclusion and it cannot act like resolving a mathematical proposition. The judgment should contain points for determination and should specify the offence if any of which and section of law under which accused was convicted and the punishment to which he was sentenced.
8. It was bounden duty that every order passed under the provisions of any statute in judicial or quasi judicial capacity must contain reasons, it should be objective and not merely subjective in nature. Subjective order cannot be termed as an order supported by reasons. Expression “reason” has not been defined in any law, but in common parlance it denotes an action taken or order passed by the person, officer or Authority which is reasonable and conforming to the requirement of reasonability. Reasonability can be gauged by examining the findings in the order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute, it would not be a proper order supported by reasons. Such an order would be a non-judicial, non-speaking and an un-reasoned order. In order to be reasonable there should be a finding demonstrating links between the material on which certain conclusions are based and the actual conclusions. In every case in which an appeal or revision lies, the Authority passing the order is required to record findings and discuss the material available on record, so that the appellate Court may examine whether the order passed is in accordance with the material available on record or there is any misreading or non-reading of evidence, or any material fact available on record has been ignored causing miscarriage of justice. Reference can be made to 1996 SCMR 3 and PLD 2006 Karachi 198.
9. At this point in time, I would also like to refer to Section 537 Cr.p.c which deals the situations in which finding or sentence of court may possibly reversible by reason of error or omission in charge or other proceedings but at the same time it also makes comprehensible that no finding, sentence order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless such error omission or irregularity has in fact occasioned a failure of justice.
10. After going through the impugned judgment, I have reached to an irresistible conclusion that the impugned judgment is not only perverse but it also perpetuated the failure of justice which cannot be cured or alleviated Section 537 Cr.p.c.
11. Since a short point is involved which does not require any minute consideration or appreciation of evidence, this appeal is admitted to regular hearing and allowed, consequently the impugned judgment to the extent of conviction of the appellant is set aside and he is acquitted. This appeal is disposed of in the above terms.
Judge