KOTKAI Versus STATE

The appellant stands charged, alongwith others, for having committed an offence punishable under section 302/34, P.P.C. vide: F.I.R. No. 79 dated 7-3-1994 lodged in Police Station, Khawaza Khela, District, Swat.

2. After the completion of the usual Police investigation he was put on trial. The Session Judge/Zaila Qazi, Swat (Mr. Amir Gulab Khan), at the conclusion of the trial, convicted the appellant and sentenced him to undergo 5 years R.I. Additionally, the appellant was sentenced to pay a fine of Rs. 5000 (Rs. Fifty thousand) or in default thereto undergo further S.I. for one year. The benefit of section-382-B, Cr.P.C. was, however, extended to him.

3. Learned counsel for the parties present and heard. I have gone through the evidence and the judgment recorded by the Sessions Judge/Zaila Qazi, Swat carefully. It may be stated at the very out set that the Session Judge has passed a very strange order in this case which is absolutely non sustainable. The Sessions Judge, on the one hand, came to the following conclusion in his judgment recorded on 10-3-1997:--

4. On the other hand, the Sessions Judge convicted the accused on a very strange ground i.e., that he had "omitted" to "restrain" the main culprit from killing the deceased. In this respect, the Sessions Judge held:--

5. The learned counsel for the appellant vehemently contended that there is no provision in the P.P.C. Vide: which the appellant could be convicted. He, therefore, submitted that the conviction/sentence awarded by the Sessions Judge is without jurisdiction, illegal, void ab initio, and therefore, liable to be set aside. According to him the Sessions Judge had failed to apply his mind before passing the sentence.

6. Khawaja Azhar Rashid, learned Assistant Advocate-General, admitted that in the circumstances he was not it, a position to defend the impugned judgment of the Sessions Judge. He conceded, and rightly so, that the conviction /sentence recorded by the Sessions Judge was not in accordance with law.

7. The learned counsel for the complainant also failed to convince me that the order of the Sessions Judge was a legal/valid order.

8. In the circumstances, I hold that the impugned order of the Sessions Judge is not only arbitrary but is also perverse.

9. This appeal is, accordingly, accepted and the conviction and sentence recorded by the Sessions Judge is set aside. The appellant shall be released forthwith if not required in any other case.

10. The Registrar/Additional Registrar (Judicial) of this Court are directed to send a copy of this judgment to the Sessions Judge for his information, with the directions that he should go through the provisions of the P.P.C. before passing uncalled for orders in future.

H.B.T./18/Pesh Appeal accepted.