1. ' BASHIR A. MUJAHID, J.---Muhammad Nawaz and Kaleem Ullah appellants have challenged judgment dated 3-4-1996 passed by the learned Sessions Judge, Hafizabad whereby they were convicted under section 302/34, P.P.C. And sentenced to death for commission of murder of Zafar lqbal. They were further directed to pay compensation of Rs,25,000 each under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo six months' R.I.
2. ' Briefly stated the facts of the case are that F.I.R. No,142 Exh.P.B!1 was recorded with Police Station, Sadar Hafizabad on the basis of statemcit Exh.P.B by Imdad Ullah P.W.2 with Nazar Muhammad, Si.
3. (since dead) at 6-15 p.m. On 11-7-1993 a' the place of occurrence which was metalled road within the area of Mauza Lakhia stating therein that the, complainant along with Zafar Iqbal (deceased) was retailing after attending the Court hearing at Hafizabad and boarded bus along with Nazir Ahmad and Mounda for their village. They alighted from the bus at 5-30 p.m. Near the Dera of Muhammad Sadiq father of above said Nasir Ahmad in order to meet him, when Muhammad Nawaz appellant armed with .222 bore rifle and Kaleem Ullah armed with .30 bore pistol came there in a. Car. Muhammad Nawaz raised Lalkara to avenge the murder of his father from Zafar Iqbal and Kaleem Ullah fired from his pistol hitting Zafar Iqbal at his abdomen. Muhammad Nawaz fired from his .222 rifle which hit Zafar Iqbal on left side of his back, who fell on the ground and succumbed to the injuries. The accused fled away towards Kot Mian while firing in the air. The occurrence was also witnessed by Mounda and Nazir Ahmad apart from the complainant. The offence was committed by the accused at the instance of Bati. The motive for the occurrence was that 4/5 years before this occurrence Asghar father of Muhammad Nawaz was murdered by Saif Ullah paternal cousin of Zafar lqbal deceased.
4. ' The investigation was conducted by Nazar Muhammad, S.I. (since dead) and his investigation was verified by Munawar Hussain, S.I P.W.12. The post-mortem examination on the dead body of Zafar Iqbal was conducted on 12-7-1993 at 7-30 a.m. By Dr. Capt. Khalid Farooq who found the following injuries:-
1. Fire-arm wound of entry 3/4 x 1/2 c.m. On the front of abdomen just below and adjacent to the umbilicus, edges inverted and margins were tattooed, with exit wound 1-1/2 x 3/4 c.m. The buttock in mid-line just' above the intergluteal cleft and below the scrum, edges were, averted.
5. 2 Fire-arm wound of entry 3/4 x 3/4 c.m. On the back of left chest 6 c.m. Towards left from midline of the chest and 6-'/2 c.m. Below and inner to the interior angle of left scapula, edges were inverted and margins were tattooed with exit wound 1-1/2 x 1 1/2 c.m. On the front of left chest 7 c.m. Towards left from midline of the chest and 5 c.m. Above and inner to the left nipple. Edges were averted.
6. ' After completion of investigation challan was submitted. Charge was framed against the accused. The accused/appellants had denied the charge and claimed the trial.
7. ' During the trial prosecution examined as many as 12 witnesses to prove the guilt of the accused.
8. ' Ocular account was furnished by Imdad Ullah P.W.2 who was complainant of the case. Mounda P.W.3 and Nasir Ahmad P.W.4 who were eye-witnesses of the occurrence. The investigation was conducted by Nazar Muhammad, S.I. (since deed) who had collected the blood-stained earth from the spot vide memo. Exh.P.0 which was attested by Nazir Ahmad and Mounda P.Ws. Respectively and two empties one of pistol .30 bore and second of rifle .222 bore were also taken into possession vide memo. Exh.P.D. Both the accused were arrested on 29-7-1993 and Muhammad Nawaz while in police custody on 3-8-1993 led to the recovery of .222 bore rifle P.7 and 5 live bullets which were taken into possession vide memo. Exh.P.G. Kaleem Ullah on the same day led to the recovery of pistol .30 bore P.5 and 3 bullets P.10/1-3 which were taken into possession vide memo. Exh P H. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.P.P and of Serologist Exh.P.Q and that of the Forensic Science Laboratory Exh.P.N.
9. ' The statements of the accused were recorded under section 342, Cr.P.C.
10. ' The trial culminated into conviction of the appellants as mentioned above, while co-accused Bati was acquitted through the same judgment.
11. ' Muhammad Nawaz and Kaleem Ullah appellants have challenged their conviction and sentence through Criminal Appeal No,322 of 1996 while the trial Court has sent up Murder Reference No,177 of 1996 for confirmation of death sentence of the appellants under section 374, Cr.P.C. The complainant had filed Criminal Appeal No,430 of 1996 challenging the acquittal of Rati co-accused which has already been disposed of vide order dated 14-1-1997.
12. ' Learned counsel for the appellants at the very outset has taken us through the impugned judgment and has argued that the learned trial Judge had neither recorded the contentions raised by the respective counsel for the parties nor has given reasons for relying the prosecution witnesses and it has been contended that the impugned judgment is in violative of mandatory provisions of section 367, Cr.P.C. Learned counsel for the appellants had placed reliance on unreported judgment in Criminal Appeal No,295 of 1996 of apex Court in Zafar lqbal and others v.
13. The State and 1997 SCM R 871, Sahib Khan v. The State and 1996 SCMR 1369 Shahid etc. v. The State and has prayed that the appeal be accepted and the judgment be set aside and the case be remanded to the learned trial Judge for re-writing of judgment after hearing the parties.
14. ' Learned counsel appearing for the State has conceded to the arguments advanced by the learned counsel for the appellants while the learned counsel for the complainant has opposed the appeal and argued that although it may not be a perfect judgment but as death sentence has to be confirmed after scrutiny of entire evidence and the case will be open before this Court, therefore, no useful purpose can be served by remanding the case and the appeal be decided on merits.
15. ' We have examined the impugned judgment in the light of the contentions raised, relevant provisions of law and the case-law referred to by the learned counsel for the appellants and have also perused the record.
16. A careful scrutiny of the impugned judgment shows that the learned trial Judge has not examined and scrutinized the entire evidence brought on record and no reason whatsoever has been given in support of the conclusion arrived at and for convicting the accused/appellants. It is settled law that the judgment must contain reasons in support of the judgment and is to be passed by consciously applying the judicial mind and it should not be written in a slipshod manner. It is true that in the Murder Reference whole the evidence is to be Scrutinized but in appeal appellant has a right to criticize the judgment. Furthermore, the provisions of section 367, Cr.P.C. Are mandatory in every case irrespective of its nature.
17. We have reserved our opinion on merits of the case so that it may not prejudice the case of either party and allow this appeal, set aside the impugned judgment and remand the case to the trial Court for re-writing the judgment on the existing evidence in the light of mandatory provision of section 367, Cr.P.C. After hearing both the parties within a period of two months in accordance with law.
18. ' Meanwhile the appellants will be taken out from the death cell and will be lodged in the prison as under trial prisoner.
19. ' With this observations Murder Reference is answered in the negative.
20. Case demanded.