' This appeal is directed against the judgment, 'dated 9-10-2001 passed by the learned Sessions Judge, Musa Khail at Lora Lai whereby the appellants were convicted under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced to undergo R.I. For seven years each and to pay a fine of Rs,5,000 or in default thereof to further undergo S.I. For three months' each. Benefit of section 382-B,Cr.P.C. Was, however, extended to the appellants.
2. Facts of the case, in brief, are that on 15-5-2000 report was lodged by one Abdul Ghaffar son of Ghulam Rasool wherein, it was alleged that on 12-5-2000 the complainant had handed over his 30 sheep to a shepherd namely Raza Gul for the purpose of grazing. On 12-5-2000 when the said Roza Gul was grazing the sheep on a mountain suddenly, the accused persons namely Mashu Khan son of Hassal, Umar Din alias Mado Khan, Jalal Din, Fazal Din, and Nazar Din all sons of Mashu Khan alongwith Shah Gul son of Bismillah appeared and forcibly snatched away the sheep from the said shepherd. On the stated allegations a formal F.I.R. Bearing No,12 under section 17(3) of the Ordinance read with section 34, P.P.C. Was registered at Police Station Toi Sar District Musakhail and investigation was carried out in pursuance thereof. On the completion of the investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed under section 17(3) of "the Ordinance" to which the accused persons pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons produced five witnesses; in all whereafter accused persons were examined under section 342, Cr.P.C. In their above statements all the accused persons denied the charge and pleaded innocence.
5. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced each of them to the punishments as mentioned in the opening para. Hereof. However, the case against absconding accused persons namely Umar Din and Shah Gul was ordered to be kept on the dormant file, till their arrest.
6. I have heard Raja Israr Ahmad Abbasi, Advocate, learned counsel for the appellants, Qari Abdul Rashid, Advocate for the State and have also perused record of the case with their assistance, carefully.
7. At the very outset, this preliminary objection has been taken by the learned counsel for the State through Criminal Miscellaneous Application No,89/I of 2002, that since the learned trial Judge has failed to specify or mention, the penal provision/section of the Pakistan Penal Code under which the accused persons have been convicted and sentenced, therefore, failure to do the needful has rendered the impugned judgment as untenable. In order to supplement his contention, learned counsel for the State has added that since section 20 of the Ordinance is not a penal provision but is merely as enabling section which empowers the Court to inflict sentences for the offences, in cases of Haraabah liable to Ta'zir, therefore, the learned trial Judge ought to have inflicted sentences on the appellants under the provisions of the P.P.C. Provided for the offences of dacoity, robbery or extortion as the case was. He has maintained that since omission to pass appropriate sentences under the relevant provision, being patently in violation of section 367, P.P.C., has culminated in gross miscarriage of justice, therefore, the impugned judgment may be set aside and the case be remanded to the learned trial Judge for rewriting of the judgment.
8. Raja Israr Ahmad Abbasi, Advocate, learned counsel for the appellants on the other hand though frankly conceded that section 20 of the Ordinance being merely an enabling section, the appellants could not have been convicted and sentenced thereunder yet, attempted to argue that since the defect was minor in nature, therefore, it was curable under section 537, Cr.P.C.
9. I have given my anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case carefully.
10. Before entering into the proposition it would be highly appropriate to have a glance of section 367, Cr.P.C. Which reads as follows:-- "367. Language of judgment. Contents of judgment.--- (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 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.
(2) It shall specify the 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).
(4).
(5).
(6).
A bare perusal of the above provision leads to the inference that compliance with section 367 of the Code of Criminal Procedure is essential in accordance with its terms and departure therefrom is not permissible in law. The use of word "shall" in section 367(2), Cr.P.C. Implies that the provision in question is not permissive but imperative. It may be mentioned here that section 20 of "the Ordinance", which too, for the sake of convenience and ready reference is reproduced herein below, is merely an enabling section and empowers the Court to inflict punishment for the offences of dacoity, robbery or extortion, in those cases of Haraabah liable to Ta'zir" wherein either the offenders are not liable to the punishment provided for under section 17 of "the Ordinance" or for which proof in either of the forms mentioned in section 7 is not available. However, section 20 of the Ordinance being not a penal provision, a person can by no stretch of imagination, be convicted thereunder. Section 20 of the Ordinance reads as follows:-- "20. Punishment for Haraabah liable to Ta'zir.--- Whoever commits Haraabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7 is not available, or for which punishment of emputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code for the offence of dacoity, robbery or extortion, as the case may be."
Failure of the trial Court to pass sentence under the appropriate section of the Pakistan Penal Code and to specify, in its judgment the same, to my C mind, has rendered the impugned judgment as sustainable. This view receives support from the following reported judgments:--
(i) Abdul Wahab and 4 others v. The State 1984 PCr.LJ 1921, Farzand Ali v. The State 1983 PCr.LJ 398,
(iii) Muhammad Hussain and 8 others v. The State and others 1980 PCr.LJ 822,
(iv) Issa Khan and others v. The State PLD 1987 Quetta 174,
(v) Muhammad Ghayoor alias Ghauri and others v. The State 1986 PCr.LJ 2344,
(vi) Ghulam Hussain and another v. The State 1986 PCr.LJ 864,
(vii) Intaz Ali and 3 others v. The State 1968 PCr.LJ 953 and
(viii) Muhammad Ramzan v. The State KLR 1985 Crl.C.
311.
' What to speak of omission to specify the penal section in the judgment, in the case of Mudassar alias Jimmy v. The State 1996 SCMR 3, it has been unequivocally laid down by the Honourable Supreme Court of Pakistan that the Court was duty bound to specify even, the relevant subsection, of the main section i,e, section 302, P.P.C. Whereunder the accused persons were convicted and sentenced.
It would be pertinent to mention here that, as provided by section 367, Cr.P.C. a judgment must contain therein sufficient detail qua facts of the case, points for determination, decision thereon and the reasons for decision. It is further the import and object of the above-referred provision that the Court while convicting an accused is also under legal obligation to specify the offence, of which the accused is convicted, and shall also cite the relevant section of the law under which he is sentenced.
As regards the submission made by the learned counsel for the appellants that since the defect, in not specifying the relevant section, being minor is curable under section 537,Cr.P.C., it may be pointed out here that under section 537, Cr.P.C., only the defects of merely of formal nature, arising from inadvertence, can be cured and it is never intended to allow the Court to violate or disobey an express provision of law and it would not apply to an infringement of a statutory requirement.
' The upshot of the above discussion is that the impugned judgment, dated 9-10-2001 passed by the learned Sessions . Judge, Musakhail at Loralai is set aside and the case is remanded to the learned trial Court for rewriting of the judgment in accordance with law, within one month of the receipt hereof. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.