MUHAMMAD IJAZ KHAN, J. This single judgment is directed to decide the instant Criminal Appeal No.151-A/2023 titled "Akhtar Nawaz v. The State etc" as well as connected Criminal Appeal No.169- A/2023 and connected Criminal Revision No.28-A/2023 both titled "Amir Shezad v. The State and others" as all of them are outcome of the one and same judgment dated 28.04.2023 passed by learned Additional Sessions Judge-II, Haripur, in a case registered vide FIR No.372 dated 21.11.2017 under sections 302/324/109/34, P.P.C. at Police Station Saddar District Haripur, whereby respondents Nos.2 and 3 in connected Cr.A No.169-A/2023 namely Shah Nawaz and Dilshad were acquitted of the charges, however, appellant in the instant Cr.A No.151-A/2023 namely Akhtar Nawaz was convicted and sentenced under section 324, P.P.C. for effectively firing upon Muhammad Javed and Amir Shahzad. He was further convicted and sentenced to three years SI under section 337-A(i), P.P.C. and three years SI under section 337-F(ii), P.P.C. He was also convicted under section 337-D, P.P.C. and was directed to pay Arsh i.e. 1/3rd of Diyat and to pay Rs.50,000/- each as compensation/Daman to the injured namely Muhammad Javed and Amir Shahzad. All the sentences were ordered to run concurrently. Benefit of section 382, Cr.P.C. was also extended to the appellant/convict.
2. Precisely, the facts of the present case are that after registration of the case, a full-fledged investigation was carried out and then challan was put in court against the appellant and respondents Nos.2 and 3 (in connected Cr.A No.169-A/2023) and Muhammad Yousaf (since dead) upon which a full-fledged trial was conducted against them and on the conclusion thereof, the appellant namely Akhtar Nawaz and aforesaid late co-accused were initially convicted and sentenced to imprisonment for life under section 302(b), P.P.C., ten years under section 324, P.P.C. and three years under section 337, P.P.C. by, the learned trial court, vide judgment and order dated 16.07.2020, however, being aggrieved of the said judgment and order, appellant and another (convicts therein) had filed a Criminal Appeal No.131-A/2020 before this court which was allowed and the aforesaid impugned judgment of the learned trial court was set aside and the case, for want of some deficiencies in the charge as well as impugned judgment on the anomaly thereof, was remanded back for de novo trial after refraining of the charge in accordance with guidelines penned down by this court vide order and judgment dated 24.11.2021. In the wake thereof, the learned trial court reframed the charge against both the appellant/convict and respondents Nos.2 and 3 (in connected Cr.A No.169-A/2023) to which they pleaded not guilty and claimed trial as such the de novo trial commenced, whereas in the meanwhile one of the accused namely Muhammad Yousaf died, so proceedings against him were abated by the learned trial court vide order dated 20.06.2022. Prosecution in order to prove its case against the appellants, produced as many as twenty-one (21) witnesses. When prosecution closed its evidence, statements of the appellant and respondents Nos.2 and 3 (in connected Cr.A No.169-A/2023) were recorded under section 342, Cr.P.C before the learned trial court, wherein they claimed innocence, however, they neither wished to produce the defense evidence nor desired to be examined as witness under section 340(2), Cr.P.C. Then after hearing arguments of learned counsel for the parties, the learned trial court vide impugned order and judgment dated 28.04.2023 convicted and sentenced the appellant while acquitted the respondents Nos.2 and 3 (in connected Cr.A No.169-A/2023) as detailed in Para No.1 of this judgment. The appellant/convict namely Akhtar Nawaz has now called in question his aforesaid convictions and sentences through the instant criminal appeal, while one of the injureds namely Amir Shezad (real brother of the complainant) has filed the connected Criminal Appeal No.169-A/2023 against the acquittal of respondents Nos.2 and 3 as well as connected Criminal Revision No.28- A/2023 for enhancement of sentence of the appellant/ convict.
3. Arguments of learned counsel for the parties and Assistant Advocate General were heard in detail and record perused with their able assistance.
4. At the very outset, it was noted that though on 15.03.2022 the learned trial court has framed charged against the appellant/convict namely Akhtar Nawaz and respondents Nos.2 and 3 (in connected Cr.A No.169-A) namely Dilshad and Shah Nawaz under various heads i.e. firstly under sections 324/109/34, P.P.C., secondly under sections 302/ 109/34, P.P.C., thirdly under sections 337- D/337-F(ii)/109/34, P.P.C., fourthly under sections 337-A(i)/337-F(ii)/109/34, P.P.C. fifthly under sections 337-F(ii)/109/34, P.P.C. and sixthly under sections 302/324/337- D/337-F(ii)/337- A(i)/109/34, P.P.C . , however, while recording judgment, the learned trial court has not mentioned whether it has acquitted the appellant namely Akhtar Nawaz under section 302/34, P.P.C. or otherwise despite the fact that the said appellant along with co-accused Muhammad Yousaf (since dead) before previous remand of the case, was convicted and sentenced to imprisotiment for life under section 302/34, P.P.C., therefore, such lacuna in the impugned judgment renders the same as illegal in terms of mandate of section 367, Cr.P.C.
5. The aforesaid statutory obligation and duty on the part of Presiding Officer of the court while recording final judgment, is enrooted in section 367 Code of Criminal Procedure, 1898 and the same being relevant for the matter in hand, are reproduced below:
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 points for determination, the decision thereon and the reasons for the decision; shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and 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.
The aforesaid provisions of law contemplate that it is/was the statutory duty of the trial court to record reasons as well as points of determination on the basis of which it is convicting or acquitting an accused person and it is/was also its duty to specify the offence and the section of law under which an accused is convicted and such exercise is to be carried out by placing in juxtaposition the contents as well as various heads of charge framed in the case, however, in the present case though the charge inter alia under various heads was framed but while recording conviction, the learned trial court has made no reference in the impugned judgment to section 302, P.P.C. against the appellant/convict, which judgment of the learned trial court goes a long way to defeat the provisions of the Code of Criminal Procedure as well as of The Constitution of Islamic Republic of Pakistan, 1973 and thus such cryptic order/judgment could not legally sustain. In the case titled "Irfan and another v. Muhammad Yousaf and another" reported as 2016 SCMR 1190, the Supreme Court of Pakistan has held that under the provisions of section 367(2) and (3), Cr.P.C. it is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions cited above. In this case; no separate sentence was awarded to the appellants under section 7(a), A.T.A. by the Trial Court or the High Court, as explained above. This legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the learned High Court in the second round when the appellants were seeking acquittal on the basis of compromise under section 302(b), P.P.C. alone, because it cannot be construed nor it is permissible under the law to hold that the appellants were impliedly sentenced to imprisonment for life under section 7(a), A.T.A. as well. The provision of section 367, Cr.P.C. provides that the Court determine first the guilt of the accused and then to pass judgment of conviction where after the sentence shall follow. Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he/they were also sentenced under section 7(a), A.T.A. by applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as the very judgment to that extent becomes illegal and violative of the mandatory provisions of subsections (2) and (3) of section 367, Cr.P.C.
6. Apart from that, while recording the conviction of appellant/convict (impugned herein) and acquitting the accused namely Dilshad and Shah Nawaz, the learned trial court did not record any reason(s) qua the applicability of section 34, P.P.C in respect of the nominated accused. The concluding Para of the impugned judgment especially Para No.22 and Para No.23 were gone through where the learned trial court has though convicted the appellant Akhtar Nawaz under section 324, P.P.C. for ten years, under sections 337-A(i) and 337-F(ii), P.P.C. for three years each and under section 337-D, P.P.C. to pay Arsh amount, however, no finding qua the applicability of section 34, P.P.C. has been recorded. Therefore, on this ground too, the impugned judgment is not sustainable in the eye of law. In the case titled "Bashir Ahmed and others v. The State and another" reported as 2022 SCMR 1187, the Supreme Court of Pakistan remanded the case while holding that the learned Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of section 34, P.P.C. (common intention) or sections 148/149, P.P.C. (common object). These two legal aspects are to be addressed with the application of the aforesaid provision of section 302(b), P.P.C. depending upon the number of assailants. It is bounden duty of the courts below to ascertain the aspect of common intention or common object primarily at the time of framing of the charge on the 'basis of contents of FIR, statements under sections 161 and 164, Cr.P.C, if any, final report under section 173, Cr.P.C and other attending documents collected by the Investigating Officer during investigation. The Trial Court is equally responsible to give a definite fording qua the applicability of section 34, P.P.C. or sections 148/149, P.P.C. at the time of conclusion of the trial while handing down the judgment. Now adverting to the moot point which was raised during the proceedings that if anybody is found guilty of commission of offence attracting the provision of section 302(b), P.P.C., the co-accused can be saddled with the responsibility on the basis of individual liability or the whole occurrence has to be decided keeping in view that the offence was committed in furtherance of their common intention and the provision of section 302(b), P.P.C. would be applied conjointly against the persons joining hands falling under either of the categories i.e. common intention or common object falling under section 34 or 148/149, P.P.C. depending upon the number of persons facing charge. We may observe that any judgment which concludes the commission of offence falling under section 302(b), P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject.
7. In view of the above, since the impugned order and judgment of the learned trial court falls short of the aforesaid legal requirements, therefore, the same is set aside and this case is remanded back to the learned trial court for rewriting of the judgment by definite decision either for the acquittal or conviction under/for each head of charge as well as applicability or otherwise of section 34, P.P.C. against the nominated accused person(s). The learned trial court shall provide an. opportunity of hearing to the appellant, complainant and the prosecutor, however, such exercise shall be completed within a period of three weeks from the date of receipt of the order of this court.
8. Since the impugned judgment of the learned trial court has been set aside and the case has been remanded back to the learned trial court for rewriting of judgment, therefore, the connected Criminal Appeal No.169-A/2023 titled "Aamir Shezad v. The State and others" filed against acquittal of co-accused as well as the connected Criminal Revision No.28-A/-2023 titled "Amir Shezad v. The State and others" filed for enhancement of sentence of the appellant have become infructuous, therefore, the same are accordingly dismissed.