FARRUKH SAYYAR and 2 others vs CHAIRMAN, NAB, ISLAMBAD and others

' SH. RIAZ AHMAD, C.J.---The above mentioned criminal petitions for leave to appeal have arisen from the judgment dated 5-5-2003 of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby on acceptance of Criminal Appeals Nos.43-E and 44-E of 2002 the conviction and sentences of the petitioners recorded by the learned Accountability Court No,II, Rawalpindi/Islamabad were set aside and the case was remanded to the trial Court for recording judgment in accordance with the provisions of section 367, Cr.P.C. After hearing the prosecution as well as the defence and considering the entire evidence on record.

2. We have heard the learned counsel for the parties at length and have also perused the impugnedjudgment. It is a mandatory requirement of section 367, Cr.P.C. That a Court while writing a judgment shall refer to the point or points for determination, record decision thereon and also give reasons for the decision. The Court shall also specify the offence 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.In the present case the learned trial Court overlooked the mandatory provisions of section 367, Cr.P.C. And rendered a judgment which falls short of the requisite standard. Failure to specify the points for determination as required under section 367, Cr.P.C. Is an omission which is not curable under section 537, Cr.P.C. And absence of decision on the points for determination and reasons in the judgment amounts to an illegality which prejudices the case of the accused.

3. It was contended by the learned counsel for the petitioners that the High Court having heard the case as an Appellate Court was not empowered to remand the case for writing a fresh judgment in view of clause (b) of section 423, Cr.P.C. Which reads as under:-- "(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provisions of section 106, subsection (3), not so as to enhance the same."

The argument is not tenable for the short reason that the impugned judgment is fully covered by clause (d) of section 423, Cr.P.C. Which is too relevant to be ignored or overlooked. It reads as under:-- "(d) make any amendment or any consequential or incidental order that may be just or proper."

4. Learned counsel for the petitioners further contended that the High Court itself ought to have written the judgment instead of remanding the case which in fact amounts to retrial of the petitioners. The contention cannot prevail because; firstly, the case has been remanded for fresh hearing and judgment and not for retrial of the petitioners and, secondly, the remand order is in line with the law laid down by this Court in Sahab Khan v. The State 1997 SCM R 871. Thejudgment recorded by the High Court in that case did not meet the requirements of section 367, Cr.P.C.

Inasmuch as it neither dealt with the points for determination nor contained evaluation of the evidence and reasons for arriving at the conclusion. The judgment was set aside and the case was remanded to the High Court for fresh hearing and fresh judgment with the following observations:- - "Without going into the merits and demerits of the case of the parties, we hold the view that criminal appeals referred to above were not decided in the light of afore-noted statutory provisions. They shall, therefore, be deemed to be still pending adjudication. Needless to state that at the appellate stage, whole original case stands reopened for its hearing and decision in accordance with law. Such-like appeals cannot be decided summarily without analytically discussing the evidence on record. The appeals of the parties were required to have been decided in accordance with the evidence. This could not be done for no obvious legal reasons. The learned counsel has attempted to argue that both the appeals may be heard and decided on merits by this Court to do substantial justice between the parties. We cannot substitute our opinion/decision with the one which is still to be given by the High Court on the basis of evidence available on record."

Resultantly, the petitions are dismissed and .