' SARDAR MUHAMMAD ASLAM, J.---Muhammad Yousaf and Shehzad alias Loha Pehlwan appellants were tried by the learned Sessions Judge, Gujranwala in case F.I.R. No,85 dated 24-3-2003 registered under section 295-B/34, P.P.C. At Police Station Garjakh, District Gujranwala. The learned trial Judge vide his judgment dated 31-1-2004 convicted the appellants under section 295-B/34, P.P.C. And sentenced them to imprisonment for life. The benefit of section 382, Cr.P.C. Was given to them. The convict Muhammad Yousaf filed. Criminal Appeal No,124-J of 2004 from jail whereas Shahzad alias Loha Pehlwan appellant filed Criminal Appeal No,300 of 2004 against their conviction and sentence. I propose to decide both these appeals by this single judgment.
2. The brief facts of the case are that on 24-3-2003 at 5-00 clock in the morning, the complainant Fazal Karim along with Haji Muhammad Afzal and Muhammad Babar were going towards a mosque in Mohallah Taj Pura to offer their 'Fajar' prayer. When they reached near the shop of Muhammad Shehzad alias Loha Pehlwan appellant, they saw burning of paper at an open place in front of shop of Shehzad. The appellants were standing around the fire. The complainant and other came nearby and saw that two copies of Holy Qur'an under fire, one in Arabic and the other in Urdu. The complainant and others collected burnt and semi burnt leaves of the Holy Qur'an from the fire. On their Query, Muhammad Yousaf appellant asked them to mind their own business. He had committed similar mischief earlier and nothing happened to him.
3. The accused were charged-sheeted, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 4 witnesses in all.
4. The appellants were examined under section 342, Cr.P.C. They pleaded their innocence. Accused Shehzad in his defence examined BabarHussain D.W.1 and Rehmat Ali D.W.2. Both the appellants opted not to appear under section 340(2), Cr.P.C.
5. Learned counsel for the appellants at the very outset criticizedthe findings recorded in para 11 of the judgment. They argued that the judgment is wholly without jurisdiction and lawful authority.
According to them, conviction is mainly based on query which in no manner can be treated as evidence. For facility of reference, para 11 of the judgment is reproduced as below:-- "it is pertinent to mention here that after conclusion ofroceedings in this case, on Court's query both the accused persons frankly conceded that they had committed the occurrence under the influence of 'booty'. The were extremely shameful over this sinful act. Simultaneously, they sought pardon from this Court. Furthermore, it has established on record as well as admitted on behalf of Muhammad Yousaf, accused that he was previously convicted and sentenced in a case of similar nature. This circumstance also goes against Muhammad Yousaf, accused that he committed this occurrence as well."
6. On the other hand, learned counsel for the State in opposition argued that though inference drawn by the trial Court on the basis of query was wrong yet sufficient evidence is available to sustain conviction.
7. I have heard the arguments of the learned counsel for the parties and have perused the available record.
8. I have made up my mind to remit this case back, hence, will avoid discussion of evidence as it may not prejudice the case of either side in trial.
9. As is evident from para 11, the learned trial Court put a query tothe appellants after closure of the proceedings, in reply whereof appellants have admitted commission of offence for gain and expressed shame over their act, seeking pardon from the Court. The Criminal Procedure Code, nowhere provides for adopting such a course. Neither any query could be held nor any admission allegedly made in consequence could be relied upon. The learned trial Court in such an eventuality was under obligation to stay its hands off in the matter. Undoubtedly serious prejudice has been caused to the appellants. Their conviction is not sustainable in law.
10. For what has been discussed above, both the appeals are allowed, the judgment of the learned trial Court dated 31-1-2004 is set aside. Resultantly, the Sessions case shall be deemed to be pending before the learned Sessions Judge, Gujranwala who may either hear, himself or entrust the same for hearing to any other learned Additional Sessions Judge for decision afresh in accordance with law expeditiously. During the pendency of trial, the appellants shall be treated as under trial prisoners.