' S. HAIDER ALI PIRZADA, J.---By this judgment, we propose to dispose of the above appeals being Criminal Appeals Nos.37 of 1990 and 38 of 1990 as these arise out of the judgments of the Special Court No.1, Presiding Officer (Suppression of Terrorist Activities), Karachi dated 6-2-1990 and involve common questions of law and facts.
2. The facts leading to the filing of the above appeals are that on 4-11-1989, Inspector Latif had set out from the C.I.A. Centre with a police party for prevention of crime. It appears that at about 7-30 p.m., the Inspector received spy information that two persons, who were in possession of unlicensed arms, were coming towards the Railway gate on Massan Road. The Inspector thereupon picked up two Mashirs, Anwar Hussain and Mushtaq Muhammad, and in their presence stopped the accused persons/appellants who were coming towards the Railway gate from Keamari side. It appears that the accused persons were carrying beddings on their shoulders. From the bedding of the appellant (Pir Ghulam) one Klashnikov bearing No.175310 and six pistols of .30 bore are said to have been recovered. Whereas from the bedding of appellant (Shamsul Haq) two Klashnikovs, bearing Nos.73500 and 72680, each fitted with a magazine containing five rounds are said to have been recovered. Separate Mashirnamas of the recoveries from the accused persons/appellants were prepared on the spot, which were signed by the two Mashirs. As the accused/appellants had no licences for the Klashnikovs recovered from their beddings, they were arrested and two written reports in respect of the matter were sent by Inspector Abdul Latif to Jackson Police Station, where they were incorporated in two separate F.I.Rs. By S.I.P. Nazir of Jackson Police Station at 20-10 and 20-30 hours, the same evening. Inspector Abdul Latif had also prepared sketch of the scene of offence and brought the accused/appellants together with the arms and ammunition to the C.IA.
Centre. The arms were sent to the Ballistic Expert and on completion of the investigation, the appellants were challaned before the Presiding Officer, Special Court No.1 (Suppression of Terrorist Activities), Karachi.
3. A formal charge was framed against the appellants to which they pleaded not guilty and claimed to be tried.
4. At the trial, prosecution examined P.W.1 Anwar Hussain who is a Councillor of Zone Central Municipal Committee. He deposed that on 4-11-1989, he had gone to Massan Road in connection with the matter of petrol tanker of the son of another Councillor. The name of the Councillor is Muhammad Akram Khan. After meeting Muhammad Akram Khan he was returning when at about 7-45 p.m. Near the Railway crossing on Massan Road, he found police party who stopped him. The accused persons/appellants were expected to pass from there and were suspected to be in possession of unlicensed arms. He thereupon stopped with the Police party. Police had also stopped another public man within 2 or 3 minutes. They saw two persons coming towards the Railway crossing from Keamari side. They were carrying beddings on their shoulders. Police detained both the persons. On unfolding the bedding which he (Pir Ghulam) was carrying it was found to contain Klashnikov (Article A). Besides the Klashnikov, six pistols were also found in the bedding. Police had seized the bedding, the Klashnikov and six pistols and prepared a Mashirnama.
He produced the Mashirnama as Exh. 2/A. On unfolding the bedding of Shamsul Haq which he was carrying it was found to contain the two Klashnikovs (Articles A and B). Besides the Klashnikovs, 10 live rounds were also found in the bedding. Police had seized the beddings, the Klashnikovs and 10 rounds and had prepared a Mashirnama. He produced the same as Exh.2/A. The police thereafter took away the accused persons and the arms and ammunition secured from them to C.I.A. Centre.
To a question in cross-examination he replied that he was not aware whether the accused were taken to Jackson Police Station. He admitted in his cross-examination that his residence is at a distance of 15 miles from the place of incident.
5. P.W. Muhammad Latif in his evidence testified that on 4-11-1989, he alongwith S.I.P. Nusrat A.S.I.
Nisar and 7 or 8 constables had set out from C.IA. For purposes of prevention of crime. He received spy information that two persons were coming towards the Railway crossing, who were in possession of unlicensed arms. Thereupon, he called two Mashirs, Anwar and Mushtaq. They saw two persons were coming from Keamari side, carrying beddings on their shoulders. On examination, in the presence of Mashirs, of the beddings being carried by the accused (Pir Ghulam), it was found to contain one Klashnikov bearing No.175310 and six pistols of, 30 bore, thereafter he prepared Mashirnama of recoveries from the accused Exh.2/A, sent the written report, Exh.3/A, to Jackson Police Station where it was incorporated in the F.I.R. Exh.3/B, recorded by Nazir Ahmed, and also prepared sketch of the scene of offence and produced the same as Exh.3/C.
6. On examination of bedding of Shamsul Haq that he was carrying on his shoulders it was found to contain two Klashnikovs bearing Nos.73500 and 72680, each fitted with magazine, and 10 live rounds, thereafter he prepared Mashirnama of recoveries from the accused Shamsul Haq. Exh.2/A, sent the written report Exh.3/A, to Jackson Police Station, where it was incorporated in the F.I.R.
Exh.3/B, recorded by S.I.P. Nazir Ahmed. He had also prepared sketch of scene of offence, Exh.3/C.
7. In cross-examination, the Inspector stated that he had not taken the signatures of the Mashirs on the sketch, that there are some shops at a little distance from the place of incident. He admitted in his cross-examination that the other Mashir Mushtaq acted as Mashir in some other cases.
8. P.W. Mouladad deposed that he received from C.IA. The Klashnikovs and he examined them and also test fired from them, the Klashnikovs are automatic weapons capable of 500 to 600 rounds per minute and were in working order. He produced the report. Exh.3/D which bears his signatures.
9. After close of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. In which they had denied the allegations made against them. The accused persons have not led any defence and declined to make statements on oath under section 340(2), Cr.P.C. The learned Presiding Officer, Special Court has been pleased to convict the appellants under section 9 read with section 13-E of the Arms Ordinance and sentenced them to suffer R.I. For six years and the present appeals have been filed against the above judgments of conviction.
10. We have heard Mr. Shaikh Ghulam Sabir Niazi, learned counsel appearing for the appellants and Mr. Muhammad Hayat Qureshi, learned counsel appearing for the State.
11. Mr. Niazi raised the following conventions:--
(1) The appellants were convicted and sentenced to R.I. For six years on 4-2-1990 by oral orders.
(2) The submission of charge-sheet is illegal as the same was not submitted by S.H.O. Of Jackson Police Station.
(3) Investigation Officer was not examined as a witness in the above cases.
12. Mr. Qureshi has not supported the conviction. The point for consideration is whether a judgment orally announced by the Presiding Officer, convicting accused person is a valid judgment within the meaning of sections 366 and 367 of the Code of Criminal Procedure.
13. The provisions of sections 366 and 367, Cr.P.C. Read as follows:--"Section 366.--(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced or the substance of such judgment shall be explained--
(a) in open Court either immediately after the termination of the trial or at some subsequent time at which notice shall he given to the parties or their pleaders, and
(b) in the language of the Court, or in some other language which the accused or his pleader understands: ' Provided that the whole judgment shall be read out by the Presiding Judge, if he is requested so to do either by the prosecution or the defence."
"Section 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, therefor 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."
14. Section 366 lays down the mode of delivery of judgment, the relevant provision in the Code in regard to contents and language of the judgment is contained in section 367.
15. On reading of sections 366 and 367, Cr.P.C. Together, it would appear that a judgment has first to be written and then delivered in open Court simulatneously signing the same. Section 366, Cr.P.C. States that if the accused requires the Court to read to him the contents of the judgment, the Court will read to him. It would thus not be open to two interpretations, that a judgment could not be pronounced without writing the same, for nothing can be read, or signed, if it is not written at all.
16. For all these reasons, we are of the view that the provisions of sections 366 and 367 of the Code of Criminal Procedure should not be permitted to be violated, for such violation was likely to impair the effeciency of the machinery of administration of criminal justice. We are clearly of the view that .a judgment announced without being written is, in fact, a nullity in law.
17. We have perused the case diary, dated 4-2-1990 which reads as follows:-- "4-2-1990. Mr. Sarwar for the State.
' Accused present in custody.
' Accused convicted under section 9 read with section 13-E of Arms Ordinance, 1965 and is sentenced to R.I. For six years. Accused present in custody and remanded back to custody to serve out the sentence as per judgment.
(Sd.)
' Presiding Officer."
18. We have perused the impugned judgment. It is advantageous to reproduce the relevant portion from the last page of judgment, which reads as follows:-- "Announced in open Court.
' Karachi.
' Date 6th February, 1990.
' Justice (Retd.) Z.A. Channa, ' Judge."
19. In the result the oral announcement of conviction in each of the aforesaid two cases is set aside and held to be a nullity in law.
20. Reverting to the second contention of Mr. Niazi that the charge-sheets in the above cases were not submitted by S.H.O. Of Jackson Police Station but were submitted by Inspector Muhammad Latif of C.IA. Centre.
21. 'Section 5 of Suppression of Terrorist Activities Act, 1975 provides as follows:-- "5. Taking of cognizance.---(1) The officer incharge of a police station shall complete the investigation and forward directly to the Special Court a report under section 173 of the Code within fourteen days in respect of a case triable by such Court: Provided that the Special Court may extend the time within which such report is to be forwarded in a case where good reasons are shown for not doing so within the time specified in this subsection.
(2) Any default on the part of an officer incharge of a police station, an Investigating Officer or any other person required by law to perform any functions in connection with the investigation, which results in or has the effect of, delaying the investigation or the submission of the report under subsection (1), shall be deemed to be a wilful disobedience of the order of the Special Court and dealt with under the law accordingly.
(3) The Speciai Court may directly take cognizance of a case triable by the Court without the case being sent to it under section 190 of the Code."
22. Section 537 of Code of Criminal Procedure reads as under:-- "Subject to the provisions hereinbefore contained, no finding, sentence or 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 officer under section 173, summons, warrant, charge, proclamations, 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.
' Explanation.--In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
23. A perusal of section 537, Cr.P.C. Would show that the accused person has to raise objection before the trial Court. In the instant case it appears that the above objection was not raised before the trial Court as such the same cannot he raised before us. In this view of the matter, we do not find any force in this contention.
24. Reverting to the last contention of Mr. Niazi that F.I.R. Was not produced by the Sub-Inspector. In the instant case Inspector Muhammad Latif produced F.I.R. In this view of the matter we do not find any force in this contention.
25. In the result, we set aside the convictions and sentences and allow the appeals.
26. We had decided the above appeals on 21-11-1990 by a short order passed on conclusion of arguments and the above are reasons for the same.