AZMAT KHAN vs State S — 2022 YLR 1158 FEDERAL-SHARIAT-COURT

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AZMAT KHAN VS State S. 17(4)---Haraabah---Appreciation of evidence---Accused were charged that they entered into the shop, snatched repeater, cash and four mobiles from the complainant, meanwhile brother of complainant entered into the shop followed by a Police Official, the perpetrators opened direct fires upon the complainant, due to which, brother of complainant, his servant and Police Official died---From perusal of the impugned judgment it would be seen that the Trial Court had rendered the finding of guilt of the accused holding that the prosecution had successfully proved its case against the accused beyond reasonable doubt by adducing convincing evidence for committing murders of three deceased during robbery---On the one hand the Trial Court had held that the requirements of S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, for awarding conviction to accused under "Hadd" were missing, on the other the Trial Court had convicted the accused for an offence punishable under S.17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced him to suffer life imprisonment as Ta'zir---Although sub-section (4) of S.17 of the Ordinance only provided death sentence as "Hadd" for an adult guilty of Haraabah in course of which he committed murder and it did not provide any other sentence---Said case was involving horrific crime of brutal murders of three innocent persons committed by the culprits by indiscriminate firing at them with weapons during the course of robbery in the shop of deceased located in heart of City---Federal Shariat Court observed that approach of the Court, in such like cases, should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inference and conclusion while deciding such type of cases and not static, as inflicting conviction and imposing sentence was not a mechanical exercise, but it was onerous responsibility to inflict fair, reasonable and adequate sentence, commensurating with gravity and or severity of crime, involving conscious application of mind and it was duty of a Judge to ensure not only that he dispensed justice, but what was equally of vital importance, that justice also seemed to have been done---Patently the trial Judge was not alive to the law and he without applying his conscious judicious mind had awarded sentence of life imprisonment as Ta'zir under S. 17(4) of the Ordinance to the accused and that too by holding that the requirements of S.7 of the Ordinance for awarding conviction to the accused under "Hadd" were missing---Despite the fact that S.17(4) of the Ordinance did not provide any other sentence except the death sentence as "Hadd", Trial Court had also not specified in the impugned judgment the reasons and or mitigating circumstances for awarding lesser punishment of imprisonment of life as mandated by the provisions of S.367(5) of the Code, which legally he was not competent to do so and that being completely in negation of the mandate of the law, having been impliedly prohibited, could not be approved---Impugned judgment, which was violative of the mandatory provisions of the law and procedure, suffering from incurable defects, was not sustainable in law---Appeal was allowed by setting aside impugned judgment and remanded the case to the Trial Court for re-writing of the judgment by adhering to the mandatory provisions of law and by applying conscious judicious mind and affording opportunity of hearing to the parties.

AZMAT KHAN vs State S — 2022 YLR 1158 FEDERAL-SHARIAT-COURT

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