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Criminal Appeal No. 280 of 1986, heard on 12th October, 1986.
‑‑‑Ss. 300, 302 & 304‑‑Patent illegality in the judgment of Trial Court‑ Trial Court on the one hand came to the conclusion that prosecution had failed to establish its case and that the accused exceeded the limit of the right of self‑defence and on the other hand he proceeded to convict the accused under S.302, P.P.C.‑‑Trial Court convicted accused under S.302, P.P.C. in view of his statement during trial but sentenced him to suffer 14 years' R.I. which was not provided in S. 302, P.P.C.‑‑Person having been found guilty under S. 302, P.P.C. could only be sentenced either to death or imprisonment for life and sentence of 14 years was not provided in S. 302, P.P.C.‑‑Conviction and sentence awarded by Trial Court was illegal and could not be sustained‑‑Case was remanded to the Sessions Judge of the District for fresh decision on existing record.‑‑[Sentence].
Muhammad Akmal Saleemi for Appellant.
Farrukh Hamayun for the State.
Date of hearing: 12th October, 1986.
This is an appeal by Muhammad Sarwar 20, against his conviction under section 302, P.P.C. by Mr. Muhammad Ilyas, Additional Sessions Judge III, Okara who vide judgment, dated 16‑3‑1986 sentenced him to 14 years' R.I. plus fine of Rs.10,000 or in default six months' R.I. It was ordered that half of the amount of fine, if recovered, shall be paid to the legal heirs of the deceased.
2. I need not go in detail examination of merits of this case because of the patent illegality in the impugned judgment.
In second paragraph at page 9 of the judgment the learned trial Judge observed that in the above circumstances, and specially in view of the above improbabilities in the prosecution case, not only the case of prosecution qua the manner of commission of offence by the accused becomes doubtful, but also the defence taken by the accused seems to be reasonable and probable. I am, therefore, of the view that the prosecution has failed to establish its case through the evidence of above two P.Ws'.
In the middle of page 12 of the judgment, the learned trial Judge came to the conclusion that the accused is, therefore, held to have exceeded the limit of right of self‑defence. In these circumstances he cannot be given the benefit of sudden and grave provocation or the right of self‑defence. He is, therefore, held guilty under section 302, P.P.C., in view of his own confessional statement, though there exist the mitigating circumstances to a lesser penalty than that of death. I, therefore, convict him for the offence under section 302, P.P.C. and sentence him to undergo R.I. for 14 years, and also to pay a fine of Rs.10,000, or in default to undergo further R.I. for six months'.
3. The impugned judgment exhibits complete ignorance of Mr.1 Muhammad Ilyas, Additional Sessions Judge‑III, Okara of the legal position of this case. It appears that he is not well‑versed with provision of sections 300, 30, and 304, P.P.C. On the one hand he came to the conclusion that the prosecution has failed to establish its case and that the accused exceeded the limit of the right of self‑defence and on the other; hand he proceeded to convict the accused under section 302, P.P.C. He convicted the accused under section 302, during trial but sentenced him to suffer 14 years' R.I. though not provided in section 302, P.P.C. A person having been found guilty under section 302, P.P.C. could only be sentenced either to death or imprisonment for life. A sentence of 14 years' R.I. is not provided in section 302, P.P.C. The conviction and sentence, therefore, awarded by the learned trial Judge was illegal and cannot be sustained. The learned counsel appearing on behalf of the State conceded this legal position and was not able to support the impugned judgment.
4. In view of the above discussion the conviction and sentence of Muhammad Sarwar appellant is set aside. The case against him is remanded to learned Sessions Judge, Okara for fresh decision according to law on the existing evidence after hearing arguments of parties on merits. The record of this case will be remitted back to the Court of Sessions Judge, Okara who will summon the accused for appearance in his Court on 6‑11‑1986.
M.B.A./M/178/L Case remanded.
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