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Criminal Appeal No. 322 of 1979, decided on 5th July, 1981.

S. 302 and Criminal Procedure Code (V of 1898), S. 537 Sentence provided in S. 302, P. P. C: not less than imprisonment for life-Appellants awarded 10 years' R. I. under S. 302/34; P. P. C.-Such illegality, held, not curable under S. 537, Cr. P. C. Case remanded for retrial-Show-cause notice issued to Additional Sessions Judge for committing such illegality.-[Sentence].

Sardar Muhammad Latif Khan Khosa for Appellants.

Khadim Nadeem Malik for the State.

Date of hearing : 4th July, 1981.

This criminal appeal arises from the judgment of Khawaja Saeed-ul- Hassan, the learned Additional Sessions Judge, Jhang, Camp at Multan, whereby he, on 21st February, 1979 while acquitting the two co-accused namely, Abdul Aziz and Suleman convicted

(i) Hasham son of Abdullah aged 30,

(ii) Habib son of Abdullah aged 27, and

(iii) Shafi son of Suleman aged 40,

appellants under section 302/34, P. P. 'C. for committing the murder of Ghulam Muhammad and sentenced Hasham to imprisonment for life and fine of Rs. 3,000 or in default thereof to further R. I. for two years. The fine, if realised, was to be given to the heirs of the deceased. Hasham was also convicted under section 324, P. P. C. for causing hurt with sharp edged weapon to Chiragh P. W. and sentenced to three years' R. I. which, however, was to run concurrently.

Habib was sentenced to 10 years' R. I. and Shafi to 4 years' R. I.

Mithu son of Ali, aged 30, was convicted under section 323, P. P. C. for causing hurt to Chiragh P. W. and sentenced to one year's R. I.

2. Since the judgment suffers from serious illegality, I propose to dispose of the appeal on a short legal ground without entering into the facts and merits of the case.

3. Learned counsel for the appellants submits that .the sentences awarded to Habib and Shafi under section 302/34; P. P. C. are illegal and it appears as if the learned Additional Sessions Judge did not know the legal sentence to be awarded under section 302; P. P. C.

4. Learned counsel appearing on behalf of the State has frankly stated that he is not in a position to defend the judgment.

5. In order to exclude the possibility of some honest error or clerical mistake, I asked the learned Assistant Advocate-General to ascertain the factual position from the Jail authorities and he informs me that the warrants sent by the trial Court to the Jail authorities for the execution of sentence do indicate that Habib and Shafi were sentenced to 10 years and 4 years respectively under section 302/34, P. P. C.

Besides this the judgment itself shows that the learned Additional Sessions Judge before signing it, had minutely read the same and made several corrections in his own hand. Had there been any honest error or clerical mistake then the trial Judge would have corrected the same. Further, I find that the learned Additional Sessions Judge has not convicted Habib and Shafi for their individual acts under any other section of the Pakistan Penal Code. In paragraph 40, last lines, it is clearly stated that "The seat of the injury attributed to Habib is the chest and the weapon of an offence is spear. It would, therefore, appear that Habib accused was also sharing the intention with Hashim accused. He is accordingly sentenced to undergo 10 years' R. I."

6. After having heard the arguments advanced by the learned counsel for the parties, going through the judgment and keeping in mind the information given by the learned Assistant Advocate-General pertaining to the warrants of the execution of sentence sent by the trial Court to the Jail authorities, I am of the considered opinion that the learned Additional Sessions Judge after having convicted Habib and Shafi under section 302/34, P. P. C. has awarded illegal sentence which is not curable under section 537, Cr. P. C. and the same has caused gross miscarriage of justice. Section 302, P. P. C. reads as follows:-

Whoever commits murder shall be punished with death or impri sonment for life and shall also be liable to fine.

The reading of section 302, P. P. C. would show that the learned Additional Sessions Judge had no jurisdiction to sentence Habib and Shafi to 10 years and 4 years respectively under section 302/34, P. P. C.

7. The upshot of the discussion is that the judgment of the learned Additional Sessions Judge being illegal and not sustainable, is set aside. Since the learned Additional Sessions Judge has expressed his opinion and is not available at Multan, I remand the case to the learned Session Judge, Multan, for retrial in accordance with law. He would keep in view section 350, Cr. P. C. as amended by Ordinance VIII of 1980 of the Code of Criminal Procedure (Second Amendment) Ordinance. 1980.

(i) Shafi and Mithu, who are on bail will remain on bail till the conclusion of the trial.

(ii) Since no appeal or revision has been filed against the acquittal of Abdul Aziz and Sulema co-accused they shall not be retried.

(iii) The learned Sessions Judge would summon the accused persons and conclude the trial within three months positively.

(iv) The expression of opinion, if any, would not prejudice the merits of the case.

Before parting with the judgment. I would like to point out that the judgment passed by the learned Additional Sessions Judge, prima facie discloses gross incompetency on the part of the trial Court and it may safely be inferred that the Additional Sessions Judge perhaps did not know the legal sentence to be awarded under section 302/34, P.P.C. On 27th June, 1981, I had issued notice to Khawaja Saeed-ul-Hassan to appear in person on 4th July, 1981 and show-cause as to why the case for the withdrawal of his judicial powers should not be recommended to the Honourable Chief Justice. I have been informed by the Additional Registrar, Multan Bench, that Khawaja Saeed-ul-Hassan is on long leave due to his illness. So far as the issuance of notice to the learned Additional Sessions Judge is concerned, the trend of the order dated 27th June, 1981, shows that the matter is to be taken on administrative side.

Let a separate file be opened by placing the following documents in it :-

(i) Photo copy of the impugned judgment;

(ii) Copy of the order dated 27th June, 1981; and

(iii) Copy of this judgment.

The file so opened be placed before me for further proceedings on 18th July, 1981.

The appeal is accepted and the case is remanded.

Order accordingly.

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