1. RAJA AFRASIAB KHAN, J.---On 11-6-1990 at 7-00 p.m. a case under section 302/307/148/149, P.P.C., was registered on the statement of Muhammad Razzaq against Sahib Khan, Saif Ali, Mansib Ali, Sher Ali, Ghulam Ali, Muhammad Ashraf, Sarsa Khan, Lal Khan, Muhammad Khan and Hakim Khan with Police Station Katha Saghral, District Khushab for the murder of Imdad Hussain and Abid Hussain and also for causing injuries to Muhammad Shafi and Ghulam Hussain P.Ws. The motive was that on the last election of the Union Council, Bidhrar, the complainant Muhammad Razzaq and his companions had abducted Sher Ali accused in order to incapacitate him to vote. A case of illegal confinement and abduction was registered against the complainant party under section 365/148/144, P.P.C. On 6-1-1988. On account of this grudge, the accused, in execution of their common object, committed the above offences. On 11-6-1990 at about Deegarwela, Muhammad Razzaq, Imdad Hussain, Abid Hussain, Ghulam Hussain, Muhammad Shafi and Mureed Hussain were sitting in the upper storey of a hotel belonging to Imdad Hussain situate at village Pail. The accused while armed with 7 MM rifles and 12-bore guns reached the spot. They raised Lalkara that they had come to take revenge of abduction of Sher Ali. They fired at them and, in consequence, Imdad Hussain, Abid Hussain, Muhammad Shafi and Ghulam Hussain were injured. On their way to hospital, Imdad Hussain and Abid Hussain died as a result of injuries received by them in the incident. The occurrence was witnessed by Muhammad Razzaq P.W. 13, Ghulam Hussain P.W. 14, Muhammad Shafi P.W. 15 and Mureed Hussain (given up). Learned Additional Sessions Judge, Khushab vide judgment dated 2-3-1991, convicted Sahib Ali and Saif Ali under section 304, Part 1, P.P.C. And sentenced them to imprisonment for life and fine of Rs.30,000 each or in default thereof, to undergo R.I. For one year each. On recovery of fine, it was ordered that it would be paid to the legal heirs of the deceased, Imdad Hussain and Abid Hussain. Mansab Ali, Sher Ali and Ghulam Ali were convicted and sentenced under section 324, P.P.C., to to years' R.I., plus fine of Rs.5,000 each or in default to suffer three months' R.I. Each. The fine was ordered to be paid to Muhammad Shafi and Ghulam Hussain, injured P.Ws. Nevertheless, by giving benefit of doubt, learned trial Judge acquitted Muhammad Ashraf, Muhammad Khan, Lal Khan, Sarsa Khan and Hakim Khan vide the same judgment. The convicts challenged their conviction and sentence through Criminal Appeal No. 198. The State also filed Criminal Appeal No.825 of 1991 praying that all the accused be convicted and sentenced under the charge of murder. Likewise, Muhammad Razzaq, complainant instituted Criminal Revision No.167 of 1991 in the Lahore High Court to call in question the acquittal of the accused. A Division Bench of the Lahore High Court vide judgment dated 3-10-1994 dismissed the appeal of the convicts and the revision petition of the complainant. Vide the same judgment, the appeal filed by the State was partly allowed and in consequence, the conviction was altered from section 304, Part I to one under section 302, P.P.C. The same sentence was, however, maintained. .
2. On 30-4-1995, leave was granted by this Court to both the convicts and the complainant. It was observed that, reappraisal of entire evidence for safe administration of criminal justice was called for.
3. Sardar Muhammad Ishaq Khan, learned counsel for the appellants has brought to our notice paras. 14 and 15 of the impugned judgment to submit that the High Court did not give reasons to decide the appeal pending before it in accordance with law. It is argued that it was the duty of the Appellate Court to have discussed the evidence of the parties before coming to the conclusion one way or the other. Learned State Counsel was unable to controvert the contention of the learned counsel for the appellants.
4. We have heard the learned counsel for the parties and have also gone through the record with their assistance. There is considerable force in the argument of the learned counsel for the appellants that his contentions were not considered in their proper perspective to meet the ends of law. In order to better appreciate the point, paras. 14 and 15 of the impugned judgment are reproduced:--- "14. Seen in juxtaposition, the prosecution case merges as being nearer the true. There is nothing improbable about the presence of the eye--witnesses whose presence seems to be fortified by their injuries. The investigation does not seem to be dishonest. There are no indications of a free fight. The injuries to the deceased persons are specifically attributed to only to persons, namely, Saif Ali and Sabab Khan.
15. Resultantly the conviction of Sahib Khan and Saif Ali is altered from section 304(I), P.P.C. To section 302, P.P.C. However, the sentence remains the same. The conviction and sentence of Mansib Ali, Sher Ali and Ghulam Ali is also maintained. Thus, Cr.A. No.823 of 1991 filed by the State is partly allowed while Cr.A. No. 198 of 1991 filed by the convicted appellants is dismissed. The private Cr.R. No.167 of 1991 has not been seriously pressed and is therefore dismissed."
5. Learned counsel has drawn our attention to para. 11 of the grounds of appeal to support his plea that he had addressed all these arguments before the High Court. These are as follows:--- "(a) That the impugned judgment cannot at all be considered as judgment in accordance with law, as the analysis part is confined in paragraph 14 consisting of only eight lines. The contentions of the petitioners were no[ dealt with in accordance with law.
(b) That the alternation of conviction from section 304, Part I, P.P.C.. To section 302, P.P.C. Of Sabab Khan and Saif Ali petitioners was against the facts of the case and not in accordance with law.
(c) That the findings of the Honourable trial Court that 'the occurrence did not take place in the manner as alleged by the prosecution was not dealt with nor controverted by reasoning, which resulted in grave miscarriage of justice.
(d) That the trial Court in convicting the petitioners and the learned High Court in upholding their convictions as well as converting the conviction from section 304, Part I, P.P.C. To section 302, P.P.C.
6. Of Saheb Khan and Saif Ali had not acted in accordance with the weight of reliable evidence and in doing so had not passed their findings on the facts and the circumstances, which did not establish the guilt of petitioners beyond all reasonable doubts.
(e) That the witnesses were interested and closely related inter-se with the deceased and inimical to.
(f) That there was no corroboration worthwhile to such an interested evidence.
(g) That the medical evidence completely belied the ocular account.
(h) That the prosecution evidence was materially discrepant and full of improbabilities. The injuries suffered by the petitioners' party were completely suppressed and prosecution version on the face of it was improbable and there was possibility of defence version being true.
(i) That the intricate questions of law and facts were overlooked.
(j) That the impugned judgment has resulted in grave miscarriage of justice. "
7. The learned counsel has argued the above points before us which were raised and argued by him before the High Court. According to him, it is apparent from the impugned judgment that these points were not taken into account by the High Court.
8. Be that as it may, we are of the view that the mandatory provisions of section 367, Cr.P.C., have not been followed in deciding these appeals. Section 367, Cr.P.C., reads as follows:--- "(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, thereon and the reasons for the decision; and shall be dated and signed by the Presiding Officer in open Court at the the 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).
(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 to sections, or under which of to parts of the same section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(5) If the accused is convicted of any offence punishable with death, the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.
(6) For the purposes of this section, an order under section 118 or section 123, subsection (3) shall be deemed to be a judgment."
9. Without going into the merits and demerits of the case of the parties, we hold the view that criminal appeals referred to above were not decided in the light of afore-noted statutory provisions. They shall, therefore, be deemed to be still pending adjudication. Needless to state that at the appellate stage, whole original case stands reopened for its hearing and decision in accordance with law.
10. Such-like appeals cannot be decided summarily without analytically discussing the evidence- on record. The appeals of the parties were required to have been decided in accordance with the evidence. This could not be done for no obvious legal reasons. The learned counsel has attempted to argue that both the appeals may be heard and decided on merits by this Court to do substantial justice between the parties. We cannot substitute our opinion/decision with the one, which is still to be given by the High Court on the basis of evidence available on record.
11. On 4-2-1997, following short order was passed:--- "For reasons to be recorded later, we set aside the impugned judgment in both these appeals for the reason that the impugned judgment does not contain evaluation of evidence and discussion in the manner it should be and also does not assign reasons for arriving at the conclusion as required under section 367, Cr.P.C. We, therefore. Remand the case to the High Court for fresh hearing of both the appeals strictly according to law and fresh judgment in the light of what is stated above.
12. Since this matter is old, it will be appreciated if the same is disposed of finally within three months from now."
13. These are the reasons in support of our order referred to above, With the above observations, the appeals succeed and are allowed.