1. ' By this common judgment I propose to dispose of Criminal Appeal No,69 of 1999 and Criminal Jail Appeal No,66 of 1999 as they arise from a common judgment.
2. ' The appellants/accused Soomar, Rabban, Muhammad Yousuf and Saindino were convicted and sentenced under sections 302 and 34, P.P.C. By the learned 1st Additional Sessions Judge, Ghotki on 16-8-1999 in Sessions Case No,122 of 1997 titled State v. Soomar and others under sections 302 and 34, P.P.C. In Crime No,202 of 1997 of Police Station Ghotki by convicting the appellants and sentencing them to .Suffer life imprisonment and also pay a sum of Rs,50,000 each as fine, half of which would be paid to the legal heirs of the deceased as compensation and in case of default of payment of fine the accused/appellants shall undergo for R.I. For one year more. Hence this appeal has been preferred by the abovenamed convicts.
3. Mr. Habibullah Shaikh, the learned counsel for the complainant and Mr. Mumtaz Ali Siddiqui, the learned counsel appearing on behalf of the State at the very outset have taken the plea that the impugned judgment is not sustainable as the trial Court has not mentioned therein that under which clause of section 302, P.P.C. The appellants have been convicted and both the counsel have conceded that the case may be remanded to the trial Court for re-writing the judgment in accordance with law. It is further urged by them that the impugned judgment is illegal and the case may be sent back to the trial Court with direction to re-write the judgment after hearing the parties and then announce the judgment; in accordance with law. The learned counsel for the complainant and the State counsel have relied upon case of Mudassir alias Jimi v. The State reported in 1996 SCM R 3, the learned counsel has also relied upon unreported cases of Yakoob and others v. The State in Criminal Appeals Nos.126 and 135 of 1995 and Criminal Jail Appeals Nos.26 and 69 of 1995 and unreported case of Nisar Ahmed and another v. The State in Criminal Appeal No,D-25 of 1997. The learned counsel for the appellants has conceded the legal position and has affirmed that the trial Court has not mentioned in the judgment in which clause of section 302, P.P.C. The appellants have been convicted.
4. ' I have gone through the judgment in case of Mudassir alias Jimi v. The State reported in 1996 SCM R 3, and this judgment has provided a guidance to .The subordinate Court for deciding the matter on such analogy. It will be advantageous to reproduce plactium (A) and (B) as under:--
(A) Before parting with the case it may be observed that the Sessions Judge had charged the petitioner and his companions for offence under section 302/149/148, P.P.C. Manifestly the Court has not specified subsection of section 302. Its mention is neither mandatory nor necessary at the stage of charge and may be ignored. But it concerns much if subsection is not specified in the judgment where conviction is awarded. In the case in hands the trial Court has convicted the petitioner and his companions for offence under section 302, P.P.C. And imposed sentence of death but has failed to specify its subsection. The Court has also not assigned any reason for not imposing sentence of 'Qisas' or sentence of 5 years or lesser than that which sentences are also provided in the section. It also slipped from the notice of the High Court. Indeed, all is left to presumptions. It was bounden duty of the Court to have specified the relevant subsection of the section 302, P.P.C. Whereunder they were convicted and sentenced. Nothing should have been left to presumption. It is requirement of section 367, Cr.P.C. And is to be followed by the Courts.
(B) It is alarming that the trial Courts ignore to follow the provisions of section 304, P.P.C. And Article 17 of the Qanun-e-Shahadat while recording evidence of evidence. It not only results in miscarriage of justice but also deters the Superior Courts in rectifying errors or passing appropriate orders."
5. ' In case of Yakoob and others v. The State the D.B. Of this Court has observed, which is reproduced hereinbelow:-- "Section 302, P.P.C. Is divided in three parts with three different kinds of punishments, such as death as Qisas, death or imprisonment for life as Ta'zir and sentence of imprisonment upto 25 years, which is mentioned below:- '302. Punishment of Qatl-i-Amad.---,. Whoever commits Qatal-i-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(b) Punished with imprisonment of either description for a term which may extend . To twenty-five years, where according to the Injunction of Islam, the punishment of Qisas is not applicable'.
6. ' The Courts while deciding the case under section 302, P.P.C. Should keep all provisions in mind strictly. It is usually found that in many cases no reference is made to the above provisions of section 302, P.P.C. Whereunder conviction has been awarded with detailed reasons. By not doing so the very purpose of the above Islamic provisions of law becomes frustrated."
7. In the other case of Nisar Ahmed and another v. The State Criminal Appeal No,25 of 1997 the similar views have been taking into consideration. ' It is bounden duty of the trial Court to keep in mind the provisions of section 302, P.P.C. In which clause of such section the accused will be dealt with and from the perusal of impugned judgment does contain the clause of section 302, P.P.C. And after promulgation of Islamic system of administration of justice it is the bounden duty of the trial Court to proceed with the case and announce the judgment in accordance with law as provided under section 302, P.P.C.
8. ' In view of the amendment in Criminal Procedure Code an Ordinance No, VII of 1990 was promulgated on 5th September, 1990 and it was enforced from 12th Rabi-ul-Awal 1411 A.H. Which fell on 2nd October, 1990. By this Ordinance the law was amended to bring certain provisions thereof in conformity with Injunction of Islam as laid down in Holy Qur'an and Sunnah. It is incumbent upon the trial Court who award the conviction by mentioning under which clause of section 302, P.P.C.
9. The culprits will be dealt with and by not awarding such sentence in such consonance laid down by amending the law thereby the punishment provided thereunder were brought in consonance with the punishments provided by Shariat. It is obvious that the trial Court has not passed the said judgment in accordance with law. By not doing so the very purpose of Islamic provision of law will become frustrated. In case of Yakoob and others it has been held by the D.B. That section 302, P.P.C.
10. Is divided in 3 parts with 3 different kinds of punishments, such as death as Qisas, death, or imprisonment for life as Ta'zirs and sentence of imprisonment upto 25 years.
11. ' In view of the foregoing reasons, I am of the opinion that the conviction and sentence recorded by the trial Court was resulted in miscarriage of justice as the impugned judgment is illegal and is hereby set aside. The case is remanded back to the trial Court for rewriting the judgment in accordance with law, after affording proper opportunity to the respective parties. It is expected that the trial Court will proceed with the matter expeditiously and conclude it within a period of 3 months.
12. ' The abovenamed appellants/accused have also filed Criminal Jail Appeal No,66 of 1999 against the same judgment passed by the trial Court through Superintendent Jail. In the light of above observations Jail Appeal is also disposed of.