SALEH MUHAMMAD Versus THE STATE

ABDUL WAHEED, J.‑‑ Saleh Muhammad (50) and his three nephews namely Imtiaz Ahmad 25 years, Fayyaz Ahmad (16 years) and Muhammad Riaz (18 years) were tried for the murder of Asghar Ali (50) and Inayat Ali (45), two brothers, and murderous assault on Muhammad Tufail and Muhammad Aslam, sons of Ashgar Ali deceased by the Addle. Sessions Judge, Kasur who vide his judgment dated 24th of November, 1984 acquitted Muhammad Riaz by giving him benefit of doubt but convicted the others under section 302 and 307 read with section 34, P.P.C. and sentenced under sections 302/34, P.P.C. Saleh Muhammad and Imtiaz Ahmad to death and Fayyaz Ahmad to imprisonment for life and all the three also to pay a fine of Rs. 5,000 each or in default to undergo R.I. for a .further period of two years each and under section 307/34, P.P.C., all the three to R.I., for five years and to pay a fine of Rs, 1,000 each or in default to suffer R.I. for a further period of one year each. All the sentences were ordered to run concurrently. The fine, if realised, was to be paid to the legal heirs of the deceased and to the injured P.Ws. as compensation under section 544‑A, Cr.P.C. All the three convicts have filed an appeal against their convictions and sentences. The case is also before us under section 374, Cr.P.C. for confirmation of the sentence of death awarded to Saleh Muhammad and Imtiaz Ahmad. This‑ judgment shall dispose of the‑appeal as well as the reference.

2. The learned trial Judge ‑framed only one composite charge under section 302/34, P.P.C. for two murders and secondly under section 307/34, P.P.C. for murderous assault on Muhammad Tufail and Muhammad Aslam and recorded only one conviction and sentence for the two murders and another conviction and sentence for the. murderous assault on two others.

3. The law as contained in section 233, Cr.P.C. requires that there shall be a separate charge for every distinct offence. In view of this provision of law, the learned trial Judge should have framed a separate charge for each murderous assault. However, .since the appellants were not prejudiced by the composite charges, the defect is curable under section 537, Cr.P.C. because the charge framed against them unambiguously conveyed to them that they were charged for two murderous assault on' two other persons.

4. However; so far as the' sentence is concerned, the illegality is not condonable. The provisions of section 367, Cr.P.C. envisage that a judgment shall specify the offence of which an accused is convicted and the punishment to which he is sentenced. The provision of law is supplemented by Rule 5 of Chapter 19‑A of the High Court Rules and Orders, Volume 111, wherein it is provided that when a person is convicted of more than one offence, the Court shall be careful to pass a separate sentence for each offence, so that if the conviction is set aside on appeal with respect to one of the offences, there will be no room for doubt as to the sentence passed with respect to the rest. In this case by recording one conviction and one sentence for the two murders and one conviction and one sentence for the murderous assault on two persons, the mandatory provisions of section 367, Cr.P.C. and those of Rule 5 have been violated. This is frankly conceded by learned counsel for the State. The non‑compliance of these provisions being incurable under section 537, Cr.P.C. is fatal.

5. In the circumstances, we without embarking upon examination of the case on merits, set aside the convictions and sentences of the appellants and remand the case to the learned trial Court with a direction to decide the same afresh in accordance with law on the evidence already recorded after hearing arguments.

The sentence of death is not confirmed.

H.B.T./S‑296/L Order accordingly.