' MUHAMMAD MOOSA K. LEGHARI, J.--- The judgment dated 31-3-2007 passed by 1st Additional Sessions Judge, Badin in S.C. No,21 of 2000, whereby the appellants have been convicted and sentenced to death has been assailed vide these appeals.
2. It is urged that since the judgment has been recorded in violation of law, the conviction is not sustainable. As such it is prayed that the! Case be remanded to the trial Court for passing a fresh judgment.
3. Learned State Counsel has frankly conceded to the contentions raised on behalf of the appellants to the effect that the judgment has not B been recorded in accordance with the provisions of section 367, Cr.P.C. And thus, is not valid in law. He has, therefore, consented to remand of the case.
4. The operative part of the judgment reads as under:-- "In view of my above discussion, the accused persons all the four accused persons are liable for capital punishment for committing of murder of deceased Muhammad Uris Kumbhar under section 302, P.P.C. They are awarded death sentence under section 304(i)(b), 34, P.P.C. They are also sentenced to suffer five years' R.I. And to pay fine of Rs,5,000 each for the offence punishable under section 457, P.P.C. In case of default of payment of fine, they shall suffer R.I. For six months.
The accused are advised to file the appeal before the Honourable High Court, Sindh, if they desire within seven days under Article 150 of Limitation Act. Certified true copies of judgment be given to the accused on proper receipt. Accused Muhammad ' Ashraf, Khadim Hussain and Nooro Chisti are produced in custody and they are remanded back to District Jail Badin to serve out the sentence. The accused Muhammad is present on bail, his bond stands cancelled and he is taken into custody and remanded back to District Jail Badin, to serve out the sentence."
5. Bare perusal of the operative part of the impugned judgment, makes it abundantly clear, that the judgment has been recorded in utter disregard of the settled principles of law, and flagrantly militates against the provisions of section 367, Cr.P.C.
6. Honourable Supreme Court of Pakistan in the case of Muddassar alias Jimi v. The State reported in 1996 SCM R 3 has ruled in the following manner to enunciate the guiding principles for recording the judgments by Sessions Judges in the cases attracting penalty under section 302, P.P.C.:--- "(27). Before parting with the case it may be observed that the Sessions Judge had charged the petitioner and his companions for offence under sections 302/149/148, P.P.C. Manifestly the Court has not specified subsection of section 302. Its mention is neither mandatory nor necessary at the stage of the charge and may be ignored. But it concerns much if subsection is not specified in the judgment where conviction is awarded. In the case in hands the trial Court has convicted the petitioner and his companions for offence under section 302, P.P.C. And imposed sentence of death but has failed to specify its subsection. The Court has also not assigned any reason for not imposing sentence of 'Qisas' or sentence of 25 years or lesser than that which sentences are also provided in the section. It also slipped from the notice of the High Court. Indeed, all is left to presumptions. It was bounden duty of the -Court to have specified the relevant subsection of the section 302, P.P.C. Whereunder they were convicted and sentenced. Nothing should have been left to presumption. It is requirement of section 367, Cr.P.C. And is to be followed by the Courts. Section 367, Cr.P.C. Reads":-- "367. (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 poirfts 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) 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, the Court sentences him to any punishment other than death, the 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, subsection (3), shall be deemed to be a judgment."
(28) We are therefore, constrained to draw the attention of the trial Court to the provisions of section 302 of the Pakistan Penal Code. It reads:-- "302 Whoever commits Qatal-e-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for fife as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
(29) Section consists of three parts, (a), (b) and (c); (a) provides sentence of Qisas, (b) death or imprisonment for life and (c) sentence up to 25 yeaRs, For conviction and sentence under section 302(a), P.P.C. The quality of evidence is laid down in section 304, P.P.C. And it has been obviously nexus with Article 17 of the Qanun-e-Shahadat Order, 1984.
(30), It is alarming that the trial Courts ignore to follow the provisions of section 304, P.P.C. And Article 17 of the Qanun-eShahadat while recording evidence of witnesses. h not only results in miscarriage of justice but also deters the superior Courts in rectifying errors or passing appropriate ordeRs, We, are, therefore, inclined to reproduce the above said statute for clear understanding:-- "304: (1) Proof of Qatl-i-Amd shall be in any of the following forms, namely:-
(a) The accused makes before a Court competent to try the offence of voluntary and true confession of the commission of the offence, or
(b) by the evidence as provided in Article 17 of the Qanun-eShahadat, 1984 (P.O. No,10 of 1984).
(2) The provisions of subsection (1) shall mutatis mutandis, apply to a hurt liable to Qisas."
' Article 17 of the Qanun-e-Shahadat:- "17.--- (1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the Enforcement of Hudood to any other special law:-
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
(31) Ostensibly section 304, P.P.C. Plays pivotal role in determining fate of persons found guilty for murder "Qatl-i-Amd" under section 302, P.P.C.:---
(i) in case where evidence as envisaged under section 304, P.P.C. Is proved an accused shall be punished for offence under section 302, part (a) and sentenced to Qisas.
(ii) in case where evidence as required under section 304, P.P.C. Is brought on the record but sentence of Qisas cannot be applied because of bar imposed under section 306, P.P.C. It reads:--- "306 Qatl-i-Amd shall not be liable to Qisas in the following cases, namely:---
(a) When an offender is a minor or insane: ' Provided that, where a person liable to Qisas associates himself in the commission of the offence with 3 persons not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;
(b) when an offender causes death of his child or grandchild, howlowsoever; and
(c) when any Wali of the victim is a direct descendant, howlowsoever, of the offender."
(iii) But where the evidence is available but it does' not fulfil the condition laid down under section 304, P.P.C. The person may be convicted and sentenced for Ta'zir under section 302, part (b) to death or imprisonment for life."
7. Tested on the touchstone of the provisions of the statute and the above cited case-law, the impugned judgment cannot sustain and must be struck down. It is accordingly set aside.
Consequently the case is remanded for rewriting of the judgment. Since the 1st Additional Sessions Judge, Badin has applied his mind, it is directed that the case be remitted to the Sessions Judge, Badin. He shall hear the parties and pass a fresh judgment in accordance with law, within a period of three months of the communication of this order.
8. Consequent upon setting aside of the judgment of conviction, the murder reference stands disposed of.