SARDAR MUHAMMAD DOGAR, J.-Shcra (32), his brother Ashiq (26), Khan Zaman (22) and Muhammad Nawaz (25) were tried by Ch.Muhammad Rafiq, Sessions Judge, Bhakkar under Section 302/34 PPC for having murdered Muhammad Bakhsh alias Lallu at Peshiwela on 20-7-84, in front of the house of Haleem in the street of village Nura Dakhli l.Indanwala, at a distance of 21 miles from Police Station Kallurkot,district Bhakkar. Learned trial Judge vide judgment dated 28-10-1985 convicted all of them under Section 302/34 PPC and sentenced them as follows:- U/s.302/34 PPC - -Ashiq sentenced to death plus to pay a fine of Rs. 8000/- in defauIt whereof to suffer R.I. For one year. Half of the fine, on recovery, to be paid as compensation to the heirs of the deceased.
Zaman sentenced to imprisonment for life plus to pay a fine of Rs.5000/- in defauIt whereof to suffer R.I. For 5 months. The whole amount, on recovery to be paid as compensation to the heirs of the deceased.Shera & Nawaz sentenced to undergo R.I for 10 years each plus to pay a fine of Rs.3000/- each in defauIt of payment of which to suffer further R.I. For 3 months each. Fine, on recovery, to be paid as compensation to the heirs of the deceased.
U/s.323/34 PPC--All the four sentenced to undergo R.I. For six -norths each, plus to pay a fine of Rs.1000/'- in defauIt whereof to suffer further R.I. For one month each. U/s.326/34 PPC--All the four sentenced to undergo R.I. For 5 years each plus to pay a fine of Rs.2000/-, in defauIt whereof to suffer further R.I for two months each.
2. Learned trial Judge has made reference for confirmation of death sentence. The convicts have filed appeal. Since both the matters arise from the same judgment, they are being disposed of together.
3. FIR Ex.PF/1 was registered at the Police Station at 8-00 p.m. On 20-7-84 by Muhammad Amin, MHC, PW6 on receipt of statement Ex.PF of Ghulam Rasul PW8 recorded by Muhammad Anwar, ASI PW.Ll, on the same day at 7-00 p.m. At Adda Jandanwala. According to F.I.R. Shera, Ashiq, Khan Zaman armed with hatchets and Muhammad Nawaz armed with a Sota had launched attack on Muhammad Bakhsh alias Lallu (deceased) after the lalkara raised by Khan Zaman that he will be taught a lesson for having played with their honour. The first blow was given by Ashiq appellant on his head, follwed by a hatchet blow on the right flank by Khan Zaman appellant, whereafter he fell down. Shera then gave two hatchet blows hitting the deceased on the right arm and right buttocks.
The sota blow given by Nawaz, struck the deceased on the head. The complainant fell on the deceased to save him whereupon Nawaz gave him four sota blows on the head, forehead, left hand and abdomen. PWs Nur Muhammad and Zaman son of Ramzan were attracted to the spot hearing the noise of the complainant.
4. Motive for the occurrence was suspicion of the accused against the deceased of having illicit relations with Mst. Shamim sister of Khan Zaman.
5. All the appellants were arrested on 26-7-84. Hatchet P.4 was recovered at the instance of Ashiq,hatchet P.2 was recovered at the instance of Shera, hatchet p.3 was recovered at the instance of Khan Zaman and Sota p.5 was recovered at the instance of Muhammad Nawaz. The challan was submitted to Court after completion of necessary investigation.
6. Statements of eleven prosecution witnesses were recorded at the trial. Ex.PO report from the office of the Chemical Examiner and Ex.PB report from the office of the Serologist were also tendered in evidence. Zaman PW was given up as un-necessary.
7. Statements of all the appellants were recorded under Section 342 Cr. P.C. On 19-10-85. Each of them denied the prosecution case, the recoveries alleged to have been effected from them and pleaded innocence.
8. Learned counsel for the appellants after giving us the facts of the case, raised a preliminary objection without going into merits of the prosecution evidence. In that, he submitted that aIthough sub-clause (2) of Section 340 Cr.P.C, had been incorporated and enforced from 21-2-85 by Ordinance No.XII of 1985, yet learned trial Judge did not offer opportunity to the appellants to make statements in accordance with the said provisions and appear as their own witnesses on oath. In support of the contention, he referred to Jan Muhammad v.The State (1987 P.Cr.L.J. (Karachi) 2302) and Nur Muhammad v. The State (1989 P.Cr.LJ. (Karachi) 153.).
9. In both the cases noted above, the convictions and sentences of the appellants were set aside and re-trial was directed from the stage at which the illegalities of not complying with the provisions of Section 340 (2) Cr.P.C, were committed.
10. Mr.Farooq Bedar, Additional Advocate-General who appeared on call, on being informed of the objection taken by learned counsel for the appellants, conceded the point after going through the judgments.
The point raised by learned counsel for the appellants is valid. The illegality pointed out did accrue in this case because of non-compliance of the provisions of Section 340 (2) Cr.P.C. The judgment dated 28-10-1985 is, therefore, set aside and the case is remanded to the Sessions Judge for retrial, which will start from the point at which the illegality was committed.
11. We may mention here that since the judgment has been set aside merely on a technical point which arose because of the illegality committed during the trial, we did not hear the learned counsel for the appellants on merits and it is for that reason that we have not taken down the evidence nor considered the merits arising therefrom.
12. Since the occurrence in this case had taken place in 1984, we deem it proper to direct that the remaining proceedings in the case shall be completed within two months of the receipt of this order, including the delivery of judgment.
Before parting, we would like to mention here that learned trial Judge by awarding sentence of 10 years' R.I. To Shera and Nawaz for conviction under Section 302/34 PPC displayed hopelessly poor Khowledge of law. He should have known that the only sentence provided for conviction under Section 302 PPC is death or imprisonment for life. It is expected that in future he will act with care and impunity. A copy of this judgment shall be sent to him.