' ALI MUHAMMAD BALOCH, J.--- Appellants Ghulam Hussain, Behram, Ali Hassan and Allah Dito were convicted by learned Additional Sessions Judge, Shandadpur on 31-8-1996. Appellant Behram was sentenced to undergo imprisonment for life under section 302(b), P.P.C. (as amended by Qisas and Diyat Ordinance) as Tazir, while the remaining appellants were sentenced to undergo imprisonment for 10 years each under section 302(c), P.P.C. (as amended by Qisas and Diyat Ordinance). The appellants were also directed to pay compensation of Rs,25,000 each payable to the legal heirs of the deceased and in case of failure they were to undergo simple imprisonment for 2 years more. The benefit under section 382-B, Cr.P.C. Had also been awarded to them.
2. All the four appellants by this joint appeal have challenged the judgment passed against them and have also challenged the sentences recorded against them.
3. The learned counsel for the appellants at the very outset of his arguments by way of a preliminary point challenged the legal aspect of the sentence as, in the judgment of the lower Court it is clearly mentioned that the sentence was considered under the provisions of Qisas and Diyat Ordinance and this was clear from the fact that while awarding sentence for imprisonment for life, section 302(b) has been mentioned and in addition, the word "Tazir" was also mentioned.
Similarly, while awarding sentences to the remaining three appellants section 302(c) was mentioned. The learned counsel for the appellants contended that the judgment shows that the learned trial Judge at the time of awarding the sentence had consciously mentioned the provisions of Qisas and Diyat Ordinance and had awarded the sentence keeping in view the provisions of that law.
4. The learned counsel for the appellants pointed out that for the first time Qisas and Diyat Ordinance (Ordinance No,VII of 1990), under which the conviction is recorded, was promulgated on 5-9-1990 and that it being a substantive law was prospective in nature. The offences committed prior to the date of promulgation of this Ordinance were to be decided under the provisions of substantive law prevalent on the date of occurrence of the offence. The present occurrence had admittedly taken place on 24th of August, 1990, on which date the same was punishable under the provisions of Pakistan Penal Code as it stood on that date and was not amended by Qisas and Diyat Ordinance (Ordinance No,VII of 1990). It was argued that therefore, the writing of the judgment and awarding of the sentence under the provisions of Qisas and Diyat Ordinance by the trial Court was in violation of the provisions of law and that the sentences awarded to the appellants under the provisions of law, which was not prevalent at the time of occurrence, had caused substantial prejudice to the accused. The prayer of the learned counsel for the appellant, therefore, was that before deciding the appeal on merits, it should be remanded after setting aside the judgment and sentence passed by the trial Court, for rewriting of the judgment afresh keeping in view the provisions of P.P.C. i,e, the law prevalent at the relevant time.
5. The learned A.A.-G. Who, apart from arguing the matter orally, had submitted his written arguments, conceded to the prayer of the learned counsel for the appellants and himself relied on earlier decisions on this point and contended that under the circumstances the judgment and sentence passed by the trial Court could not be sustained and he has prayed for remanding the case to the trial Court for fresh decision keeping in view the provisions of section 302, P.P.C. And other relevant provisions of P.P.C. As they stood on the date of commission of the offence.
6. I have given due consideration to the preliminary point raised by the learned counsel for the appellants and have given due consideration to the arguments of the learned counsel for the parties on that point.
7. Although the appeal was argued in detail on merits also but I feel that in view of my having arrived at a conclusion that the preliminary point raised by the learned counsel for the appellants was correctly taken, and the matter ought to be remanded to the trial Court for re-writing of the judgment, I have not considered the merits and demerits of the evidence recorded by the trial Court and have not considered the other points raised in the appeal.
8. As regards the proposition that the judgment has not been written keeping in view the provisions of relevant law prevalent at the relevant time, there are earlier decisions on the point, which have been referred. One of such decision is of a Division Bench of this Court in Criminal Appeal No,101 of 1995, connected with Confirmation Case No,5 of 1995. That appeal was decided on 16-1-1997 and it was held that the date of occurrence in that case was 7-6-1989, whereas the judgment in that case was passed on 6-6-1995, showing therein that the sentence was being passed under the provisions of Qisas and Diyat Ordinance. The judgment and sentence in the above appeal was set aside and the case was remanded to the trial Court for re-writing of the judgment as it was held that Ordinance VII of 1990, known. As Qisas and Diyat Ordinance, was promulgated for the first time on 5-9-1990. The decision in the above appeal was based on earlier decisions viz. Criminal Appeal No,61 of 1993, decided on 30-9-1993 and the case reported in 1990 PCr.11 317.
9. After giving due consideration to the arguments of the learned counsel and having considered the legal position, I fully agree with the contention of the learned counsel for the appellants as well as the learned A.A.-G. That since the date of incident in the present case was prior to the date of promulgation of Qisas and Diyat Ordinance, under which the judgment and sentence were passed by the trial Court, I hold that it is a fit case where the judgment and sentence passed by the trial Court be set aside and the case be remanded to the trial Court for re-writing of the judgment. It is needless to point out that Qisas and Diyat Ordinance has brought amendment in substantial nature to the provisions of P.P.C. And that it if substantive law, which takes effect prospectively.
Since the passing of the judgment under Qisas and Diyat Ordinance for the offence committed when the substantive law in force was P.P.C., and there is difference in awarding of the sentences under the two different laws, I hold that the appellants have been prejudiced by passing of the sentences under the amended law.
10. Consequently, under the above described circumstances, the case is remanded to the trial Court with the direction that the judgment be re-written after due notice of hearing to the parties and provisions of P.P.C., as it was prevalent at the time of incident, be considered instead of provisions of Qisas and Diyat Ordinance. The trial Court is directed to decide this case on remand within two months from the date of receipt of the copy of this order and the R&P of the case. The office is directed to send the R&P of the case without any delay.