Anwaarul Haq Pannun, J. Through this single judgment, I propose to decide titled Criminal Appeal filed by appellants, namely , Nawab Ali, Shah Muhammad, Mukhtiar Ahmad and Bashir Ahmad as well as Criminal Revision filed by Muhammad Mohsin S/o Munir Ahmad, the complainant, seeking enhancement of sentence of the appellants, against judgment dated 12.02.2019, passed, on the conclusion of trial, in case FIR No.31 1/2017, dated 19.08.2017 for offences under Sections 302, 148 & 149 PPC, registered at Police Station Chab Kalan Mian Channun by the learned Additional Sessions Judge, Mian Channun, whereby they have been convicted and sentenced as under:-
1. Nawab Ali Under Section 302(b) PPC Imprisonment for life as Ta'zir and compensation of Rs.5,00,000/- payable to the legal heirs of deceased under Section 544-A Cr.P.C and in case of its non-payment, to further undergo six months S.I.
2. Shah Muhammad Under Section 337-A(iii) PPC Rigorous imprisonment for ten years as Ta'zir and payment of Arsh equal to 10% of Diyat i.e. Rs.1,93,559/- and till its payment, to remain in jail and be dealt with as if sentenced to S.I.
3. Mukhtiar Ahmad Under Section 337-A(iii) PPC Rigorous imprisonment for ten years as Ta'zir and payment of Arsh equal to 10% of Diyat i.e. Rs.1,93,559/- and till its payment, to remain in jail and be dealt with as if sentenced to S.I.
4. Bashir Ahmad Under Section 337-F(ii) PPC Rigorous imprisonment for three years as Ta'zir and payment of Daman amounting to Rs.50,000/- payable to the legal heirs of deceased and till its payment, to remain in jail and be dealt with as if sentenced to S.I.
The appellants were held entitled to the benefit of Section 382-B Cr .P.C.
2. The prosecution' s story , as unfolded through F.I.R (Exh.P A/2), registered on the basis of complaint (Exh.P A) lodged by Muhammad Mohsin complainant (PW-1) is to the effect that on 19.08.2017 at about 04:30 p.m., the complainant along with his brother Muna war (deceased) and witnesses were present at their agricultural land to irrigate it, when Nawab Ali, Mukhtar Ahmad, Shah Muhammad, Bashir Ahmad (appellants) and Khalid (since P.O), while armed with hatchets, after forming an unlawful assembly , in furtherance of their common object, came there and raised Lalkara for teaching a lesson to Munawar for demanding the water charges, within their view, Mukhtar inflicted hatchet blow, which landed at the nose of Munawar , hatchet blow of Shah Muhammad landed at his left cheek, Bashir Ahmad also inflicted hatchet blow which hit on the inner side of his right arm, hatchet blows of Muhammad Khalid hit his calf and knee; the complainant and the witnesses tried to interfere and rescue Munawar but they could not succeed due to extend ing life threats of the accused; the comp lainant attended his brother but he succumbed to the injuries on the way to the hospital.
The motive behind the occurrence is stated to be that one day prior to the occu rrence, on demanding tube-well water charges by the deceased, some altercation took place between the deceased and the accused persons.
3. Registration of the case, after its usual investigation, encapsulated into a report under Section 173 Cr.P.C (hereinafter to be referred as 'the Code'), which was duly submitted before the learned trial court, the appellants, after supplying them with the copies of incriminating material under Section 265(c) Cr.P.C, were charged sheeted to which they denied and pleaded not guilty , while professing their innocence and claiming t rial, the prosecution was directed to produce evidence.
4. The prosecution has produced as many as eleven witnesses besides tendering, in evidence, reports of Punjab Forensic Science Agency as Exh.PR & Exh.PS. Medical evidence has been furnished by Dr. Muhammad Usama (PW-8), Medical Officer THQ Hospital, Mian Channun, who observed as many as five injuries on the person of the deceased.
5. Learned trial court, on conclusion of the trial, proceeded to convict the appellant s as aforesaid. Hence, the titled appeal as well as the criminal revision.
6. At the very outset, learned Deputy Prosecutor General has pointed out that the learned trial court charge sheeted the accused on 18.01.2018 for offences under Sections 302, 148 & 149 PPC but while passing the impugned judgment, had not expressly recorded any findings in respect of charges under Sections 148 & 149, P.P.C., which is a legal infirmity making the impugned judgment liable to be set aside, therefore, the case may be remanded to the learned trial court for decision afresh.
7. Although, initially the learned counsel for the appellants, controverted the above stance on the ground that the appellants have already endured the agony of protracted trial, therefore, remandin g the case to the trial court, for decision afresh, would serve no other purpose but add to their predicament, being behind the bars since long. It was also urged that the legal defect in the impugned judgment can be cured by this Court while exercising its power under Sections 537 or 561-A of the Code., however , later on, they have conceded that the impugned judgment does not fulfill the mandatory requirements of provision of Section 367 of the Code owing to omission on the part of the learned trial court to record findings on the charges under Sections 148 & 149, P .P.C.
8. Arguments heard. Record perused.
9. Before undertaking judicial scrutiny of the matter and analyzing the rival contentions in the light of law, I feel it appropriate, at the inception, to refer to certain relevant provisions of law in verbatim.
"Charge ". "Charge includes any head of charge when the charge contains more heads than one."
10. Section 221 of Chapter XIX of the Code deals with the framing of charge against the accused who had committed an offence which reads as follows:-
221. Charge to state offence. (1) Every charge under this Code shall state the offence with which the accused is charged.
(2) Specific name of offence; sufficient description. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only .
(3) How stated where offence has no specific name. If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) What implied In charge. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particulars case.
(6) Language of charge. The charge shall be written either in English or in the language of the Court.
(7) Previous conviction when to be set out. If the accused having been previously convicted of any offence, is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed.
11. The Hon'ble Supreme Court of Pakistan in Criminal Original Petition No.06 of 2012 in Suo-Motu Case No.04 of 2010 , decided on 26 April, 2012 reported as PLD 2012 Supreme Court 553, has held as under:- "It is pertinent to mention here that Section 221, Cr.P.C. dealing with Charge and its forms clarifies that a Charge is to state the offence and if the offence with which an accused is charged is given a specific name by the relevant law then the offence may be described in the Charge "by that name only". According to Section 221, Cr.P.C. "If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged". It is further provided in Section 221, Cr.P.C. that "The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge". In the case in hand not only the name of the offence, i.e. contempt of court had been specified in the Charge framed against the accused but even the relevant Constitutional and legal provisions defining contempt of court had been mentioned in the Charge framed.
According to Section 221(5), Cr.P.C. the fact that the Charge is made in the terms noted above "is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case".
12. Chapter XXVI of the Code provides certain parameters for delivering a judgment either by the lower or by the superior Courts. The word 'judgment' has not been defined in the Code or in Pakistan Penal Code, 1860. However , in legal parlance, it means judicial determination/decision of a Court seized of the matter . According to Black' s Law Dictionary :- "the mental faculty that causes one to do or say certain things at certain time, such as exercising one's own discretion or advising other; the mental facility of decision- making." "a Court' s final determination of rights and obligations of the parties in a case."
According to Cambridge English Dictionary :- "a decision or opinion about someone or something that you form after thinking carefully; an official legal decision; a decision that you make, or an opinion that you have, after considering all the facts in a situation: According to the Law Dictionary :- "The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.
The sentence of the law pronounced by the court upon the matter appearing from the previous proceedings in the suit. It is the conclusion that naturally follows from the premises of law and fact.
The determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in such court, affirming that, upon the matters submitted for its decision, a legal duty or liability does or does not exist."th
13. Section 367 of the Code enumerates the detail of requisite contents, which are considered mandatory for delivering a speaking judgment. For convenience of reference, the said section is reproduced hereunder:- "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 (XLV of 1860) 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 (XLV of 1860) 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 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."
14. The bove-quoted provisions of law clearly envisage that the Court while delivering its verdict, commonly known in the legal parlance as 'judgment', shall specifically express the offence and the section of the Penal law, under which the accused is convicted and sentenced. Even in case of acquittal, the judgment shall state the offence of which the accused is acquitted of and a direction should be issued that the accused be set at liberty if under custody and not required in any other case and in case of being on bail, his bail bonds shall be ordered to be discharged forthwith .
In "Messrs Union Bank Limited v. Messrs Silver Oil Mills Limited and others " (2003 CLD 239), Supreme Court of Pakistan has observed as under: "A judgment must fulfil the following three conditions:-
(a) It should terminate proceedings in the High Court.
(b) It should determine the rights and liabilities of the parties.
(c) The determination of the rights and liabilities as envisaged in (b) above should be on merits and should further be final and conclusive so as to cover the entire range of substantive rights and liabilities which formed the subject-matter of real controversy in the suit proceedings which initially gave rise to the dispute.
In "Mohib Ali v. The State " (2004 YLR 1 106), it has been held as under:- The word "judgment" has also come into consideration before the different Courts and it has been held that the word "'Judgment" means a decision in a trial which decides a case finally , so far as the Courts trying the case is concerned and terminating in either conviction or acquittal of the accused ."
The Hon'ble Supreme Court of Pakistan in case reported as Muhammad alias Jhari vs. The State (1986 PCr.LJ 2535) , while dealing with the issue under discussion, has observed as under:- "----This subsection requires, on a plain reading thereof, that the judgment must contain the points for the decision. The object of this provision is that the trial Court should consider the case before it in all its bearings and after such consideration arrive at a clear-cut conclusion on the basis of the evidence produced by the prosecution. The perusal of the impugned judgment would show that the learned Assistant Sessions Judge, Gambat has ignored the mandatory provisions of section 367(1), Cr.P.C. The judgment did not show as to what were the points for determination nor that any decision was given by the learned trial Court on the said points.
After giving the prosecution story and the defence version the learned Assistant Sessions Judge has gone on reproducing the evidence of all the witnesses in an unnecessary details and at certain places in the first form.
The judgment is no doubt very lengthy and runs in as many as 35 typed pages and learned Assistant Sessions Judge must have worked hard on writing the same, but from its perusal it is quite clear that he has neither brought out the points for determination which were the necessary ingredients which the prosecution ought to have proved nor expressed his clear-cut decisions on those points."
15. After above discussion, now the stage has been set to examine the contentions of learned counsel for the parties already recorded in preceding paragraphs. It will be appropriate to examine the relevant provisions of law and the case-law wherein those provisions have been expounded and interpreted. Section 537 of the Code deals with the irregularities, omissions and errors which are curable by this Court, which is reproduced as under:- "537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings .
Subject to the provisions hereinbefore contained, no finding, sentence order passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account--
(a) of any error, omission or irregularity in the complaint, report by police-of ficer under section 173, summons, warrant, charge, proclamation, order , judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) 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."
In Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others (2004 SCMR 1), the august Supreme Court of Pakistan, while expounding the provisions of Sections 367 and 537 of the Code, has held as under "..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...."
16. The High Court has inherent powers Under section 561-A of the Code, which is reproduced as under:- "561-A. Saving of inherent power of High Court . Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
The Hon'ble Supreme Court of Pakistan in case reported as Shoukat Bus Service, Shahkot Vs. The State and another (1969 SCMR 325 ), has laid the principle as under:- "----It is no doubt, true that where expres s provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time, it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of code."
Moreover , in case reported as Bashir Ahmad Vs. Zafar -ul-Islam and others (PLD 2004 S.C 298), it has been held as under:-
22. Using the powers under section 561-A, Cr.P.C. to determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable.
Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route. Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under section 561-A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity and the trial Courts as a surplus age. This never was and could never have been the intention of the law maker in adding section 561-A to the Code. Reference may be made to Sheikh Mahmood Saeed and others v. Amir Nawaz Khan arid another (1996 SCMR 839), Malik Salman Khalid v. Shabbir Ahmad , D&SJ, Karachi and another) (1993 SCMR 1973) and Mst. Sarwar Jan v . Ayub and Gulab ( 1995 SCMR 1679 ).
23. The correct import of the provisions of section 561-A, Cr .P.C, may be summarized as under:
(i) The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provisions of law;
(ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code of fers no remedy for the redress of a grievance;
(iii) Inherent powers can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be of fered to justify such a deviation; and
(iv) In the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561-A, Cr.P.C. should be invoked only in exceptional cases for reasons to be recorded."
17. It is well established principle of law that right of appeal cannot be exercised unless granted under a Statute. It is, as such, a statutory right which is conferred upon a person through legislation. Reliance in this regard can be placed to the case reported as Syed Masroor Shah and others Vs. The State (PLD 2005 SC 173) wherein it has been held as under:- "----It is well-entrenched legal proposition "that right of appeal is a creature of statute. An appeal is competent only if the relevant statute so provides and not otherwise."
Chapter XXXI of the Code deals with appeal, reference and revision. Section 404 of the Code provides as under:- "No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force."
In case an accused is acquitted of all charges or partially of any of the offences, a statutory right accrues in favour of a person aggrieved of such order to challenge the same before the forum prescribed, by way of filing an appeal against acquittal under the provisions of Section 417 of the Code or the relevant provision of any Special Law. For convenience of reference, the said Section is reproduced below:- "417. Appeal in case of acquittal. (1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.
(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order .
(4) If in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1)."
Perusal of afore-quoted provisions of law show that under Section 417(2) of the Code, in case of order/judgment of acquittal passed by any court other than the High Court, an appeal lies before the High Court within 30-days.
However, if the order of acquittal is passed, in any case, instituted upon a complaint and the High Court, on an application made to it by the complainant, grants Special Leave to Appeal against the order/judgment of acquittal, only then the complainant may file such appeal in the High Court. Under sub section (3) to Section 417 Cr.P.C., limitation period for moving an application for grant of Special Leave to Appeal is 60-days from the date of order of acquittal. As reproduced above, the right of appeal against acquittal is subject to limitation contained in subsection 417(2-A) i.e. thirty days and is not governed by the provision of Limitation Act, 1908 like appeal against conviction Section 155 whereof provides 30-days' time in filing the appeal against conviction before the higher forum as the provision of Section 5 of the Limitation Act, 1908, in view of section 29 of the Act ibid has not been made applicable.
As a sequel of above discussion, it may be inferred with certainty that the judgment must terminate the proceedings, determine the rights and liabilities of the parties, with clarity finally . There exists a legislative wisdom behind declaring the provision of Section 367 of the Code as mandatory non-compliance whereof is an illegality , neither curable under Section 537 of the Code nor rectifiable under Section 561-A of the Code. Its non-compliance can ensue into number of consequences causing prejudice to the rights of the parties directly involved in the criminal case as well as those indirectly linked with it. While interpreting an ancient adage, encapsulated into a legal maxim 'Actus Curiare Neminem Gravabit ' the Hon'ble Supreme Court, in the case reported as Muhammad Ijaz and others vs. Muhammad Shafi through LRs. (2016 SCMR 834 ), has held as under:- "There is a well-known maxim "Actus Curiare Neminem Gravabit " ( an act of the court shall prejudice no man), thus, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order , required by law in the prescribed manner , then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not with the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law ."
Mere conceiving the acquittal on the basis of implications, can give rise to cause prejudice to an aggrieved person, in the light of as discussed above, in filing the appeal against judgment of acquittal. It may further be observed that the rights of a public or civil servant accused can be prejudiced by way of non-compliance of the mandatory provision of Section 367 of the Code. It may not be out of context to hold that in case an accused is acquitted of the charge being on bail, bail bonds executed by his surety cannot be deemed of having been discharged from his liability in absence of acquittal in express and clear terms and that too, in the light of Section 367 of the Code. The accused, in case of acquittal of a charge , earns a double presumption of innocence. The judgment of acquittal of an accused, previously accused of commission of some offence, passed while complying with the mandatory provision of Section 367 of the Code, should be deemed as a proof of a clean chit of innocence of that person.
There is also hardly any cavil with the preposition that each person has right to enjoy the life in a dignified manner and free of any stigma. It is further observed that a judgment of acquittal passed in violation of mandatory provision of Section 367 of the Code may cause prejudice to the exercise of statutory right of acquitted accused, in case of his malicious prosecution to claim damages.
18. Now coming to the merits of the instant case. Needless to say that the appellants were distinctly and separately charged under Sections 148 & 149, P.P.C. for 'rioting', carrying the penalty of imprisonment up to three years or with fine or with both but, contrary to the express mandatory provision of Section 367 of the Code, the learned trial court failed to even advert to this charge, what to speak of recording either acquittal or conviction of the appellants under Sections 148 & 149, P.P.C., thus creating scope for remanding the case for decision afresh after hearing learned counsel for the parties.
19. Consequently , the instant appeal is accepted, the impugned judgment dated 12.02.201 9, as well as conviction and sentences awarded to the appellants are set aside and the case is remanded to the learned Sessions Judge, Khanewal, for the reasons recorded above, with consent of learned counsel for the parties for decision afresh regarding guilt or innocence of the appellants regarding Sections 148 & 149 PPC, after providing opportunity of hearing to both the parties. It is, however , made clear that till the decision of the matter , the trial of the case in hand shall be deemed pending before the learned trial court and during this period, the appellants will be treated as under trial prisoners. Office is directed to send record of the case along with a copy of this judgment, forthwith, to the learned Sessions Judge, Khanewal, for the needful within a period of one month after first hearing and if need be, to conduct proceedings day-to-day basis.
20. Criminal Revision No.94 of 2019 filed by complainant Muhammad Mohsin seeking enhancement of conviction and sentence of the appellants, has become infructuous, therefore, the same stands dismissed.
21. Before parting with the judgment, I am constrained to observe that parties, in this case, have endured the rigors of trial. The learned trial court also consumed time while conducting trial and recording the detailed judgment.
Having been passed, in violation of a mandatory provision of law, the impugned judgment has failed to withstand the test of legality necessitating setting aside it and remanding the same, as observed hereinabove only because of an act of court. The public time has been consumed in hearing and deciding the matter , which was at the cost of other litigants, therefore, I deem it appropriate to direct the learned trial courts to exercise extra care, caution and take cognizance of all relevant facts and legal provisions applicable to the case while deciding a case, especially involving conviction or acquittal of the accused persons.