ATA MUHAMMAD AND 4 OTHERS Versus THE STATE

This revision petition is directed against the Judgment of learned Sessions Judge, Khushab, dated 15‑11‑1987, whereby he upheld conviction and sentence, of the petitioners under section 435, P.P.C. recorded by the trial Magistrate in his order dated 9‑9‑1987.

2. The petitioners were tried for an offence under section 435 P.P.C. on the allegation that on the night between 22/23rd May. 1986, at about .l a.m. they had set on fire the bags of wheat etc stacked by Muhammad Sadiq, complainant, at his thrashing floor near the Dera of Haji Dost Muhammad. They denied the charge and prosecution examined six witnesses in support of the allegations. They were implicated by Muhammad Sadiq (PW1), Mirza Khan (PW2), who claimed to have identified the petitioners at the time of occurrence. Learned trial Court, therefore, convicted and sentenced them. The appeal preferred by the petitioners has been dismissed by learned Sessions Judge, Khushab, vide his impugned judgment dated 15‑11‑1987, hence this revision.

3. It is contended on behalf of convicts/ petitioners that the impugned judgment of the learned Sessions Judge is not in consonance with the provision of section. 367, Cr.P,C. inasmuch as learned Presiding Officer while disposing of their appeal had neither noted down the points for determination nor did he give reasons for his conclusion and as such it is no judgment in the eye of law hence their appeal merits to be remanded to the lower Court for deciding it afresh in accordance with law. Learned counsel appearing on behalf of the State has conceded the proposition. He pointed out that even sentence passed was illegal.

4. I have considered the contention of the learned counsel for the petitioners and also perused the impugned judgment. No doubt the learned Sessions Judge wrote an elaborate and a laboured judgment but I am constrained to remark that he had neither formulated questions for determination nor had he endeavoured to find if they stood established in view of the evidence on record.

5. In this case following questions required to be determined:

(a) Whether an occurrence has taken place as alleged by the prosecution?

(b) Whether P.Ws. who claimed to have seen the occurrence were really present at the spot at the relevant time: and if so.

(c) Whether they were in a position to identify the petitioners at night time while committing the alleged offence?.

None, of these questions have been determined in the light of the evidence on record, therefore, the petitioners in my view have been gravely prejudiced by the impugned judgment delivered by the learned Sessions Judge Khushab.

6. For the above reasons I set aside the impugned judgment and remand the case to the learned Sessions Judge, Khushab who shall rehear the parties and decide afresh the appeal of the petitioners. The petitioners shall remain on bail till the disposal of the appeal.

7. Criminal Miscellaneous No.2 of 1988, for compromise is dismissed as the offence is not compoundable.

S.G.D./A‑332/L Order accordingly.