HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.212 of 2014

 

Present:

Justice Naimatullah Phulpoto, J.

 

Date of Hearing                     :           26th August, 2015

Date of Announcement        :           28th August, 2015

 

Appellant                                :           Janan son of Abdul Raheem through                                                                      Mr. Ajab Khan Khattak, Advocate

 

Respondent                            :           The State through Mr. Abrar Ali Khichi,                                                                 Assistant Prosecutor General Sindh

 

JUDGMENT

 

          Naimatullah Phulpoto, J.--- Appellant Janan was tried by learned III Additional Sessions Judge Karachi West for offences under sections 3/4 of the Foreigners Act, 1946. On the conclusion of the trial, appellant Janan was convicted and sentenced under sections 3 / 4 read with section 14 of the Foreigners Act, 1946 vide judgment dated 21.03.2014.

 

2.       Brief facts of the prosecution case as disclosed in the F.I.R. are that on 04.09.2013 at 0110 hours complainant ASI Muhammad Afzal along with subordinate staff was on patrolling duty in the area, when they reached at Quetta Hotel near Naka Chungi Hotel at 0300 hours, saw that one person was sitting in the hotel in suspicious manner. He disclosed his name as Janan son of Abdul Rahim. He further disclosed that he is Afghani and resident of Qandhar. He did not produce passport he was arrested. Such F.I.R. was lodged against him under sections 3 / 4 of the Foreigners Act, 1946.

 

3.       After usual investigation, challan was submitted against the accused under the above referred sections.

 

4.       It appears that appellant has pleaded guilty to the charge and he was convicted for the following reasons:

 

          “In view of plead guilty of accused person namely Janan son of Abdul Rahim is convicted under section 265-H(ii) Cr.PC and he is sentence to commit an offence punishable under section 3 / 4 read with section 14 of the Foreigners Act, 1946, which is described as under:-

 

“If any persons contravene the provision of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine, and if such person has entered into a bond in pursuance of clause (f) of sub section (2) of section 3. His bond shall be forfeited and any person bound thereby shall pay the penalty thereof show cause to the satisfaction of the convicting court why such penalty should not be paid.”

 

The accused namely Janan son of Abdul Rahim is hereby convicted under section 265-H(ii), Cr.PC and sentence for committed an offence punishable under section 3 / 4 read with 14 Foreigner Act with imprisonment for a term which may extend to five years and shall also be liable to be fine of Rs.500/- if he will not pay the same, he shall suffer more R.I. for one month.

 

The perusal of record show that accused namely Janan S/o Abdul Rahim in judicial custody since 05.09.2013 till today. It is therefore order that benefit under section 382 Cr.PC is extended to the above named accused person and period of his detention in this case shall be connected towards substantive sentence awarded to the above named accused person.

 

The above named accused person namely Janan S/o Abdul Rahim is present in custody and he is remanded back to Central Prison Karachi to serve out the above sentence awarded to him.”

 

5.       Learned advocate for the appellant/mainly contended that trial Court has not passed judgment according to section 367 Cr.PC. It is argued that points for determination have not been formulated and sentence awarded to the appellant/accused is also not in accordance with law. In support of his contentions he relied upon the case of FARRUKH SAYYAR and 2 others versus CHAIRMAN, NAB, ISLAMABAD (2004 SCMR 1).

 

6.       Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh conceded the contentions raised by the learned counsel for the appellant and raised no objection for remanding case to the trial Court for passing judgment according to section 367 Cr.PC.

 

7.       Section 367 Cr.PC 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 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 of 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, the Court shall in its judgment state the reasons why sentence of death was not passed.

 

          (6)     For the purpose of this section, an order under section 118 of section 123, subsection (3) shall be deemed to be a judgment.

 

8.       In the case of FARRUKH SAYYAR and 2 others versus CHAIRMAN, NAB, ISLAMABAD and others (2004 SCMR 1), Honourable Supreme Court has observed as under:-

 

2. We have heard the learned counsel for the parties at length and have also perused the impugned judgment. It is a mandatory requirement of section 367, Cr.P.C. that a Court while writing a judgment shall refer to the point or points for determination, record decision thereon and also give reasons for the decision. The Court shall also specify the offence 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. In the present case the learned trial Court overlooked the mandatory provisions of section 367, Cr.P.C. and rendered a judgment which falls short of the requisite standard. Failure to specify the points for determination as required under section 367, Cr.P.C. is an omission which is not curable under section 537, Cr.P.C. and absence of decision on the points for determination and reasons in the judgment amounts to an illegality which prejudices the case of the accused.”          

 

9.       In this case, punishment of section 14(2) of Foreigners Act, 1946, may extend to 10 years. Trial Court for its satisfaction should have recorded the evidence of the prosecution witnesses and after assessment of evidence and keeping in view the plea of guilt of the appellant, should have decided the case in accordance with law but it has not been done in this case. Moreover, it appears that appellant has been convicted by trial Court under sections 3 and 4 of the Foreigners Act, 1946. Section 3 of the Foreigners Act, 1946 relates to powers of the Federal Government to make orders, whereas section 4 of the Act relates to Internees. Appellant has been convicted and sentenced to five years without mentioning the relevant subsection of section 14 and only 5 years sentence has been awarded. I, therefore, hold that judgment of trial Court is not in accordance with section 367 Cr.PC. While relying upon the above cited authority, conviction and sentence as recorded by learned III Additional Sessions Judge Karachi West dated 21.03.2014 are set aside. The case is remanded to the trial Court for passing the judgment in accordance with law.

 

          Appeal is allowed to the above extent.

 

                                                                                      JUDGE

Gulsher/PA