1. MUNAWAR AHMED MIRZA, J.--By his Judgment, dated 30-8-1986 learned Sessions Judge, Nasirabad at Jhat Pat has convicted Issa Khan son of Kaura Khan caste Khosa for committing murder of deceased Ali Gul and Mst. Amiran, awarding him capital punishment. Said Court has also convicted Karim Bakhsh son of Murad Ali and Punhal son of Ghous Bakhsh caste Khosa for the same offence, and sentenced them to undergo R.I. For seven years and fine of Rupees twenty thousand or in default further R.I. For one year.
2. Capital punishment awarded to Issa Khan came up for consideration by way of Murder Reference No.5 of 1986. Whereas aforementioned conviction has been challenged by two separate appeals one of which being No.22 of 1986 has been filed by Issa Khan, and other appeal No.23 of 1986 is preferred jointly by Messrs Karim Bakhsh and Punhal Khan. All these 3 matters impugn same judgment, therefore, were taken up and heard together.
2. Learned counsel for appellant raised a preliminary objection to the propriety and validity of impugned judgment, by pointing out that it did not fulfil essential requirements of section 367, Cr. P.
3. C. For proper appreciation section 367 (1) and (2) is reproduced below:-- "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 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 by 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."
4. Bare perusal of above-quoted provision indicates that a proper judgment must specify, points for determination and reasoning of the Court for deciding such points. Therefore, obviously while deciding a criminal case the Trial Court is obliged to thoroughly examine all the evidence A adduced by parties as well as arguments raised by each side and to appreciate the same according to law. The conclusion drawn in respect of each point should be based on sound grounds and reasonings. Precaution in this behalf is evidently greater when matter involves capital punishment.
5. 3.In this case it may be seen that learned Sessions Judge, Nasirabad after stating brief facts and points raised by learned counsel for parties has proceeded to record his conclusion without, either commenting or giving reasoning whatsoever, which may correspond to the requirement of law.
6. Undoubtedly neither points of determination were specified nor B ingredients of accusation have been properly set out, so much so even sections of law under which conviction is recorded have not been mentioned. When confronted with this factual position, learned Assistant Advocate- General candidly conceded that impugned judgment violates mandatory requirement of section 367, Cr. P.C. And is, therefore, untenable.
4. We have carefully considered the operative portion of impugned judgment and relevant provisions of law. There is no doubt that normally minor omissions and commissions are curable and could be ignored by finding the deficiency by appellate Court. But in the instant case on account of failure to specify points of determination, absence of decision about contentions raised in the matter and total lack of reasoning clearly constitute a material defect of impugned judgment which cannot be conveniently overlooked. In this view it is profitable to refer observation in case Muhammad alias Jhari v. The State 1986 P Cr. L J 2535:-- "The next important ruling was given by a Division Bench of this Court consisting of Constantine, C.J., and Valiani, J. In Latif Ali Shah v. The Crown reported in PLD 1955 Sind 230 where no issue was raised in the judgment under appeal upon the point whether the accused was a public servant, the charge being that he had defrauded the Government of a certain sum while he was member of the Sind Police Rifles Force. The Court framed a point for determination viz. Whether the accused committed fraud upon the Government by drawing 93-7-0 twice or did he so through genuine mistake. It was held that this was no compliance with section 367, Cr.P.C. The prosecution has to prove the ingredients of the offence charged and it is for a Judge to set these out seriatim.
7. The Division Bench further observed that it has often come across the errors of oversight due to this lax habit of framing the points for determination.
8. The next ruling was in the case of Rustam and others v. The Crown reported in PLD 1951 B J 59 and was given by Abdul Aziz, C.J. Relying upon the first rulings as well as two Indian rulings, one reported in AIR 1943 Cal. 612 and other 45 Cr.L J 1944.
9. The relevant passages of the above ruling are reproduced as under:- "The Sessions Judge while writing the judgment ignored the mandatory provisions of section 367, Criminal Procedure Code. The judgment did not show what were the point or points for determination nor that any decision was given thereon.
10. The most important question in this case was whether an unlawful assembly was constituted and who constituted it. There were 8 accused before the learned Sessions Judge. It was his paramount duty to discuss the evidence against each and every accused which was produced by the prosecution in support of their case to arrive at the right and conscientious decision. But the Sessions Judge had not considered it worthwhile to do so.
11. Such a judgment is not judgment in the eye of law, consequently there was no alternative but to set it aside and ask the Sessions Judge to rewrite it.
12. For the reasons shown above, I am of the clear view that the learned Assistant Sessions Judge, Gambat has not complied with the requirements of section 367 (1), Cr. P.C. And as such the impugned judgment is not a judgment in the eye of law. Consequently, I have no alternative but to set it aside and direct the trial Court to rewrite the judgment keeping in view the provisions of section 367 (1), Cr. P.C. Particularly those with regard to framing of the points for determination and the findings thereon along with reasons for arriving at those findings."
13. The abovequoted report applies on all force. Additionally Trial Court has not specified the sections of Pakistan Penal Code or any other law under which appellants were convicted, as required under section 3671 (2), Cr. P.C.
14. For the foregoing reasons we are inclined to hold that impugned judgment is apparently contrary to law. Consequently Appeals Nos.22 of 1986 and 23 of 1986 are partly accepted whereas Reference No.5 of 1986 is rejected. Accordingly matter is remanded to Trial Court for writing the judgment afresh on its own merits by taking into consideration all the points raised before it by the parties and requirements of section 367, Cr.P.C. Uninfluenced from any observation in this judgment.
15. 5.Accused Imam Bakhsh son of Gulzar who faced trial along with appellants was acquitted vide impugned judgment on the basis of categoric statement made by Public Prosecutor expressly stating that nothing was proved against him. In fact this statement amounted to request within the perview of section 494, Cr. P.C. For withdrawing prosecution against him, which however has been accepted. Learned Assistant Advocate-General maintains the stand by reaffirming that factually prosecution against Imam Bakhsh was withdrawn. In the circumstances we are not inclined to interfere with the finding of acquittal in respect of Imam Bakhsh son of Gulzar Khosa.
6. Learned counsel for appellant verbally requested for grant of bail to the appellants. Since accused Karim Bakhsh and Punhal were on bail at the time of conviction recorded against them, therefore, they may be released on bail on furnishing fresh surety in the sum of Rs.25,000 each and P.R. Of like amount to the satisfaction of learned Sessions Judge, Nasirabad at Jhat Pat. However, as regard Issa Khan, there does not exist any ground for justifying his release, as such request for his bail is squarely rejected.