' Through this criminal revision it has been prayed that judgment dated 9-5-1992 passed by the learned Additional Sessions Judge; Faisalabad be set aside and the case be remanded to him for decision of the appeal of respondents Nos.1 and 2 and the criminal revision filed by the State on merits.
2. The brief facts of the case as per F.I.R. No.198 recorded at Police Station, Factory Area, Faisalabad ,on 18-4-1986 at the statement of the petitioner are that he was serving as Dispenser of one Dr. Shabbir Ahmad. On the date of occurrence at 4-15 p.m. the petitioner alongwith Muhammad Yasin.
P.W. came to the shop of Dr. Shabbir to open the same. When he was unlocking it, the respondent No.1, armed with Sota and respondent No.2 armed with hammer (Hathori) came there alongwith other three persons and attacked them. Respondent No.1 gave a Sota blow on his nose while respondent No.2 inflicted hammer blow on the back of his right ear. The other three unknown persons gave him fist blows on his wrist and knee. The petitioner/complainant entered the shop to save his life but all the five accused forcefully entered the shop and continued to beat him. The petitioner came out of the shop and ran towards Jurnal Chowk. On his hue and cry Muhammad Yasin, Saghir Ahmad and Muhammad Azam saved his life. According to the F.I.R. the motive of the occurrence was that there was a platform contiguous to the shop of Dr. Shabbir Ahmad and that of respondent No.1, and there was dispute regarding the said platform. A few days before the occurrence a scuffle had taken place between the petitioner and respondent and the matter was patched up. The respondent No.1 had a grudge against the petitioner and for that reason he, alongwith his companions, caused injuries to the petitioner. On the statement of the petitioner, a case was duly registered at the Police Station Factory Area, Faisalabad. During the investigation the names of unknown assailants transpired and accordingly the petitioner in his supplementary statement told the names of other three unknown assailants as Abdul Hamid. Ramzan and Muhammad Sharif. Muhammad Sharif, co-accused, could not be arrested and Nasir Ahmad, S.H.O./Inspector, Factory Area, submitted incomplete challan on 26-11-1986, stating therein that in the near future there was no chance of the arrest of Muhammad Sharif, co-accused.
3. The case was tried by Malik Muhammad Aslam, learned Magistrate Faisalabad and the accused were tried under sections 148, 149, 323, 325 and 452, P.P.C. The charge under sections 148 and 149, P.P.C. was also frame obviously for the reason that according to the report submitted under section 173, Cr.P.C. five persons were named as the accused persons namely Habib Ullah, Waheed Shahzad, Muhammad Ramzan, Abdul Hameed and Muhammad Sharif although one of them namely Muhammad Sharif has absconded and his arrest was still awaited.
4. The learned Magistrate at the conclusion of the trial convicted Habib Ullah respondent to one year R.I. and Waheed Shahzad respondent Rs.1,000 as fine vide judgment dated 3-2-1991. The remaining accused we acquitted.
5. Respondents Nos.1 and 2 filed an appeal against their conviction whereas the State filed a revision petition for the enhancement of the sentence of these two respondents and also convicting the remaining accused person.
' The learned Additional Sessions Judge vide judgment dated 9-5-1992 accepted the appeal, set aside the judgment and conviction of the respondents and remanded the case to the learned trial Court for de novo trial after framing a fresh charge against them. The revision petition moved by the State was rejected.
6. The learned counsel for the petitioner has contended that the learned appellate Court has erred in law while remanding the case back to the trial Court as according to him he could not appreciate that five accused were mentioned in the F.I.R. at the earliest though the names of three accused were supplied later on and according to the prosecution five accused having participated in the occurrence the provision of sections 148 and 149, P.P.C. was fully applicable and, therefore, no illegality in framing the charge under sections 148, 149, P.P.C. had been committed.
Even otherwise no prejudice was caused to the accused in their defence by framing the charge under sections 148, 149, P.P.C. It was also urged that the finding of the learned appellate Court of non-compliance of the provision of section 367, P.P.0 is also not sustainable under the law as the irregularity of non-specification of the sections in the judgment under which the accused were convicted is curable under section 537, Cr.P.C. In support of his arguments he relied upon Muhammad Nawaz v. The State 1979 SCM R 79 and Teeral etc. v. The State 1979 PCr.LJ 101.
7. The learned counsel for the State conceded the arguments of the learned counsel for the petitioner.
8. I have given my anxious consideration to the arguments advanced by both the sides and have also gone through the record very minutely. I find that in the report under section 173, Cr.P.C. submitted in this case by the police five accused have been nominated as the accused persons. If one of the accused had absconded after the occurrence it does not mean that he had not participated in the occurrence. The charges are always framed taking into consideration the position when the offence was committed. In this case according to the prosecution five persons have participated in the occurrence so the learned trial Court has correctly framed the charge under sections 148 Ind 149, P.P.C. and the learned appellate Court has erred in law while setting aside the judgment of the trial Court on this point. So far as the argument of the learned counsel for the petitioner that the conviction recorded by the learned trial Court without mentioning the relevant sections is concerned I find hat it is mandatory provision under section 367, subsection (2), Cr.P.C. to pecify the offence and the section of P.P.C. or any other law under which the ccused is convicted and the punishment to which he is sentenced. Although from the reading of the impugned judgment as a whole it appears that the conviction and sentence was intended to be made under sections 325 and 323, C.P.C. but as a matter of abundant caution, the requirements of the law must fulfilled and in the concluding paragraph of the judgment the relevant section under which orders of conviction and sentence are proposed to be passed must be specifically mentioned notwithstanding the fact that such omission is curable under section 537, Cr.P.C. It is also a law laid down by the Supreme Court that technical plea of judgment having not particularly specified offence under P.P.C. leading to conviction of accused held of no help to accused in any manner.
' In view of the abovesaid finding I set aside the judgment passed by the learned Additional Sessions Judge, Faisalabad dated 9-5-1992 and direct the respondents 1 and 2 to appear before the learned appellate Court on 7-11-1992 who will decide the appeal of the respondents and the revision filed by the State on merits.