Ali Muhammad and 5 others petitioners were tried under section 440/448/148/149, P.P.C. On the allegations that they on 19=2-1986 at 8-00 a.m. Demolished two walls of the house of Feroze Khan complainant and encroached upon the same, by Magistrate 1st Class, Jauharabad. They denied the charge and claimed to be tried.
2. To prove its case, prosecution produced 5 witnesses. Muhammad Feroze Khan P.W.2 supported the charge against the petitioner. Muzaffar Hussain P.W.1, Muhammad Sumair P.W.3 and Muhammad Mumtaz P.W.4 are the eye--witnesses of the occurrence. They have supported the statement made by Muhammad Feroze P.W.2 in all material particulars. When examined under section 342, Cr.P.C., the petitioners denied the incriminating circumstances. They did not produce any witness in defence.
3. The trial Court vide its order dated 18-6-1987 convicted Fateh Khan and Shameer petitioner under section 440/448/148/149, P.P.C. And sentenced them to one year's R.I. Each. The remaining petitioners were convicted under section 448/148/149, P.P.C. And sentenced to six months' R.I. Each.
The appeal filed by the petitioners against their conviction and sentence was dismissed by the learned Additional Sessions Judge, Khushab on 23-1-1989, hence this revision.
4. Since after hearing the learned counsel for the parties, I feel persuaded to set aside the conviction and sentence of the petitioners on account of legal infirmities in the judgment, so I need not set out the facts in detail and enter into the merits of the case. I find that although the petitioners were charged and convicted under as many as four sections of Pakistan Penal Code, yet no separate sentence under each section was passed by the trial Court. This being violative of the mandatory provisions of section 367(2)(3), Cr.P.C.; conviction and sentence of the petitioners cannot sustain. The relevant provisions may be reproduced advantageously:-- "Section 367 (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.
(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."
Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioners are set aside.
5. Now the question arises as to whether or not, direction for the retrial of the case be given? I find that the occurrence took place in the year, 1986. The petitioners have faced the agony of protracted trial. They were sent to jail thrice and have remained in jail as under-trial prisoners and also as convicts, so, it may not be proper to direct their retrial after 5 years of the occurrence.
Disposed of accordingly.