Provisions of 367 CRPC are mandatory for conviction

PLJ 1991 Cr.C (Lahore) 489 Present: MUHAMMAD MUNIR KHAN, J ALI MUHAMMAD and 5 others-Petitioners versus THE STATE-Responden Criminal Revision No.35 of 1989, accepted on 26.5.1991 Criminal Procedure Code, 1898 (V of 1898)-- — -S.367 (2) & (3) read with Pakistan Penal Code, 1860, Sections 440, 448, 148 & 149-Criminal trespass-Offence of-Conviction for-Challenge to—Although petitioners were charged and convicted under as many as four sections of PPC, yet no separate sentence under each section was passed by trial court'-Held: Conviction and sentence of petitioners being violative of mandatory provisions of Section 367 (2)&(3) of Cr.P.C cannot sustain-Held further: Occurrence facing taken place in 1986, petitioners having faced agony of protracted trial ajid having been sent to Jail thrice, it would not be proper to direct their re- ^ triai. [P.490]A&B Mr. Abdul Sattar Chughtai, Advocate for Petitioners. Syed All Raza, Advocate for State. Date of hearing: 26.5.1991. JUDGMENT Ali Muhammad and 5 others petitioners were tried under Sections 440/448/148/149 P.P.C. on the allegations that they on 19.2.1986 at 8-00 A.M. demolished two walls of the house of Feroze Khan complainant and encroached " upon the same, by Magistrate 1st Class, Jauharabad. They denied the charge and claimed to he tried. 2. To prove its case, prosecution produced 5 witnesses. Muhammad Feroze Khan P.W.2 supported the charge against the petitioners. Muzaffar Hussain P.W.I, Muhammad Sumair P.W.3 and Muhammad Mumtaz P.W.4 are the eye witnesses of the occurrence. They have supported the statement ade y Muhammad Feroze P.W.2 in all material particulars. When examined under Section 342 Cr.P.C., the petitioners denied the incriminating circumstances. They did not produce any witness in defence. 3. The trial Court vide its order dated 18.6.1987 convicted Fateh Khan and Shameer petitioners under Sections 440/448/148/149 P.P.C. and sentenced them to one year R.I. each. The remaining petitioners were convicted under Section 448/148/149 P.P.C. and sentenced to six months R.I. each. The appeal filed by he petitioners against their conviction and sentence was dismissed by the learned Additional Sessions Judge, Khushab on 23.1.1989, hence this revision. 4. Since after hearing the learned counsel for the parties, I feel persuaded to set-aside the convictions and sentence of the petitioners on account of legal infirmities in the judgment, so I need not set out the facts in detail and enter into the merits of the case. I find that although the petitioners were charged and convicted under as many as four sections of Pakistan Penal Code, yet no separate sentence under each section was passed by the trial Court. This being violative of the mandatory provisions of Section 367(2) (3) Cr.P.C., conviction and sentence of the petitioners cannot sustain. The relevant provisions may be reproduced advantageously: - Sec.367 Cr.P.C.(2) "It shall specify by offence (if any) of which and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced. (3) When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative". Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioners are set-aside. 5. Now the question arises as to whether or not, direction for the retrial of the case be given? I find that the occurrence took place in the year, 1986. The petitioners have faced the agony of protracted trial. They were sent to jail thrice and have remained in jail as under trial prisoners and also as convicts, so, it ay not be proper to direct their retrial after 5 years of the occurrence. Disposed of accordingly. (MBC) (Approved for reporting) Petition accepted.