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Criminal Appeal No. 76 of 1.979, decided on 12th February, 1980.
--‑‑Ss. 367 & 537‑Judgment‑Trial Court after citing names of wit nesses and without discussing their evidence holding accused guilty- Court not even referring to evidence of prosecution witnesses apart from solitary statement of one prosecution witness‑Such judgment, held, not judgment as contemplated under S. 367‑Mandatory provisions of S. 367 not complied with-Illegality not curable -Case remanded for rewriting of judgment in circumstances of case.‑ [Judgment‑‑Remand of case].
Rustam v. The Crown P L D 195 B J 59 and Gul Muhammad v. The Crown P L D 1952 B J 34 ref.
Khakan Babar for Appellants.
Khalid Ahmad for the State.
Dates of hearing :19th November, 1979 and 12th February, 1980.
The appellants, Muhammad Hussain, Muhammad Iqbal, Muhammad Sharif, Muhammad Yaqub, Haider, Noor Ahmad, Ghulam Muhammad, Muhammad Rafiq, and Manzoor Ahmad were convicted and sentenced under section 420 of the Pakistan Penal Code by Ch. Mumtaz Muhammad Khan, Special Judge, Anti‑Corruption, Lahore‑1, vide his judgment dated 21st January 1.979. Muhammad Hussain and Muhammad Iqbal appellants were sentenced to three years' R. I. and a fine of Its. 1,000 each, while the rest were awarded one year R. 1. and also asked to pay a fine of Rs. 500 each. Chanan Din ‑co‑accused also tried together with them was, however, acquitted. Faryad Hussain Patwari co‑accused said to have acted in collusion with them: died before the commencement of the trial. The appellants have preferred a joint appeal against their conviction and sentence.
2. It was the case of the prosecution that Kamla complainant, a refugee claimant, on 21st February, 1963 was allotted land equivalant to 299 units, in Mauza Walleke, Tehsil Narowal, District Sialkot while a balance of 200 units was still pending there. During his absence from the village, the appellants in collusion with Faryad Hussain Patwari and Channan Din co‑accused, got fictitiously transferred the 200 units to mauza Machhana and Machhana Nangal, have the land allotted in his name and then got the same transferred to them on 23rd May, 1962.
3. It is contended by the learned counsel for the appellants that the decision of the learned Special Judge is not a judgment under section 367, of the Code of Criminal Procedure. This section requires that a judgment must contain the points for determination, the decision thereon and the reasons for the decision which can be arrived at only after considering the evidence in the case. It is, therefore, essential that a judgment in a criminal case should scrutinize and discuss the oral and the documentary evidence. It ought to set out what the evidence is and not merely the conclusion of the Judge. In the present case, a perusal of the judgment would show that the learned Special Judge after citing the names of the witnesses and without discussing their evidence has come to a conclusion holding the accused guilty. Apart from the solitary statement of P. W. 11, he has not even referred to the evidence of the prosecution witnesses much less discussed. It was his paramount duty to discuss the evidence against the appellants produced by the prosecution in support of its case to arrive at a right decision but he has not done so. Such a judgment i not a judgment in the eye of law as contemplated under section 367, Cr. P. C. Non compliance with the mandatory provisions of this section is an illegality not curable under the provisions of section 537, Cr. P. C. The learned counsel for the State appearing before me is also unable to support the. judgment on this ground.
4. In view of the above finding, I have no alternative but to set aside the judgment and ask the learned Special Judge to re‑write it in accordance with the provisions of section 367, Cr. P. C. and in the light of the deci sions of this Court, such as Rustom v. The Crown (P L D 1951 B J 59) and Gul Muhammad v. The Crown (P LD 1952 B J 34).
5. As Muhammad Hussain and Muhammad Iqbal appellants are in jail for the last more than one year, I direct that they shall be released on bail subject to their furnishing bail bonds in the sum of Rs. 10,000 (rupees ten thousand) each with one surety each in the like amount to the satisfaction of Assistant Commissioner, Lahore.
6. The record shall be sent back to the learned Special Judge immediately.
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