HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.212 of 2014

Present:
Justice Naimatullah
Phulpoto, J.

Date of Hearing : 26th August, 2015

Date of Announcement : 28th August, 2015

Appellant : Janan son of Abdul Raheem

through Mr. Ajab Khan
Khattak, Advocate

Respondent : The State through Mr. Abrar

Ali Khichi, Assistant
Prosecutor General Sindh

JUDGMENT

Naimatullah Phulpoto, J.--- Appellant Janan was

tried by learned III Additional Sessions Judge Karachi West
for offences under sections 3/4 of the Foreigners Act, 1946.
On the conclusion of the trial, appellant Janan was
convicted and sentenced under sections 3 / 4 read with
section 14 of the Foreigners Act, 1946 vide judgment dated
21.03.2014.

2. Brief facts of the prosecution case as disclosed in the

F.I.R. are that on 04.09.2013 at 0110 hours complainant ASI
Muhammad Afzal along with subordinate staff was on
patrolling duty in the area, when they reached at Quetta
Hotel near Naka Chungi Hotel at 0300 hours, saw that one
person was sitting in the hotel in suspicious manner. He
disclosed his name as Janan son of Abdul Rahim. He further
disclosed that he is Afghani and resident of Qandhar. He
did not produce passport he was arrested. Such F.I.R. was
lodged against him under sections 3 / 4 of the Foreigners
Act, 1946.

3. After usual investigation, challan was submitted

against the accused under the above referred sections.
4. It appears that appellant has pleaded guilty to the
charge and he was convicted for the following reasons:

“In view of plead guilty of accused person

namely Janan son of Abdul Rahim is convicted under
section 265-H(ii) Cr.PC and he is sentence to commit
an offence punishable under section 3 / 4 read with
section 14 of the Foreigners Act, 1946, which is
described as under:-

“If any persons contravene the provision of this

Act or of any order made thereunder, or any
direction given in pursuance of this Act or such
order, he shall be punished with imprisonment
for a term which may extend to five years and
shall also be liable to fine, and if such person has
entered into a bond in pursuance of clause (f) of
sub section (2) of section 3. His bond shall be
forfeited and any person bound thereby shall
pay the penalty thereof show cause to the
satisfaction of the convicting court why such
penalty should not be paid.”

The accused namely Janan son of Abdul Rahim is

hereby convicted under section 265-H(ii), Cr.PC and
sentence for committed an offence punishable under
section 3 / 4 read with 14 Foreigner Act with
imprisonment for a term which may extend to five
years and shall also be liable to be fine of Rs.500/- if he
will not pay the same, he shall suffer more R.I. for one
month.

The perusal of record show that accused namely

Janan S/o Abdul Rahim in judicial custody since
05.09.2013 till today. It is therefore order that benefit
under section 382 Cr.PC is extended to the above
named accused person and period of his detention in
this case shall be connected towards substantive
sentence awarded to the above named accused
person.

The above named accused person namely Janan

S/o Abdul Rahim is present in custody and he is
remanded back to Central Prison Karachi to serve out
the above sentence awarded to him.”

5. Learned advocate for the appellant/mainly contended

that trial Court has not passed judgment according to
section 367 Cr.PC. It is argued that points for determination
have not been formulated and sentence awarded to the
appellant/accused is also not in accordance with law. In
support of his contentions he relied upon the case of
FARRUKH SAYYAR and 2 others versus CHAIRMAN, NAB,
ISLAMABAD (2004 SCMR 1).

6. Mr. Abrar Ali Khichi, learned Assistant Prosecutor

General Sindh conceded the contentions raised by the
learned counsel for the appellant and raised no objection
for remanding case to the trial Court for passing judgment
according to section 367 Cr.PC.

7. Section 367 Cr.PC reads as under:

“367. Language of judgment Contents of

judgment.—(1) Every such judgment shall, except as
otherwise expressly provided by this Code, be written
by the presiding officer of the Court or from the
dictation of such presiding officer in the language of
the Court, or in English; and shall contain the point or
points for determination, the decision thereon and the
reasons for the decision; and shall be dated and
signed by the presiding officer in open Court at the
time of pronouncing it and where it is not written by
the presiding officer with his own hand, every page of
such judgment shall be signed by him.

(2) It shall specify offence (if any) 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.

(3) Judgment in alternative. When the

conviction is under the Pakistan Penal Code and it is
doubtful under which of two sections, or under which
of two parts of the same section, of that Code the
offence falls, the Court shall distinctly express the
same, and pass judgment in the alternative.”

(4) If it be a judgment of acquittal, it shall state

the offence of which the accused is acquitted, and
direct that he be set at liberty.

(5) If the accused is convicted of an offence

punishable with death, and the Court sentences him
 to any punishment other than death, the Court shall in
its judgment state the reasons why sentence of death
was not passed.

(6) For the purpose of this section, an order

under section 118 of section 123, subsection (3) shall
be deemed to be a judgment.

8. In the case of FARRUKH SAYYAR and 2 others versus

CHAIRMAN, NAB, ISLAMABAD and others (2004 SCMR 1),
Honourable Supreme Court has observed as under:-

2. We have heard the learned counsel for the parties

at length and have also perused the impugned
judgment. 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.”

9. In this case, punishment of section 14(2) of Foreigners

Act, 1946, may extend to 10 years. Trial Court for its
satisfaction should have recorded the evidence of the
prosecution witnesses and after assessment of evidence
and keeping in view the plea of guilt of the appellant,
should have decided the case in accordance with law but it
has not been done in this case. Moreover, it appears that
appellant has been convicted by trial Court under sections
3 and 4 of the Foreigners Act, 1946. Section 3 of the
Foreigners Act, 1946 relates to powers of the Federal
Government to make orders, whereas section 4 of the Act
relates to Internees. Appellant has been convicted and
sentenced to five years without mentioning the relevant
subsection of section 14 and only 5 years sentence has been
awarded. I, therefore, hold that judgment of trial Court is
not in accordance with section 367 Cr.PC. While relying
upon the above cited authority, conviction and sentence as
recorded by learned III Additional Sessions Judge Karachi
West dated 21.03.2014 are set aside. The case is remanded
to the trial Court for passing the judgment in accordance
with law.

Appeal is allowed to the above extent.

JUDGE
Gulsher/PA