Law: Pakistan Penal Code, 1860

Section: 302, 324, 34

Penal Code (XLV of 1860)-------Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), Ss. 367(5) & 410--Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Murder---Sentence other than the death---Scope---Awarding of lesser punishment---Cogent and convincing reason, non-assigning of---Effect---Word " shall" used in S. 302, P.P.C---Scope---Powers of the Trial Court under S. 367(5) of the Criminal Procedure Code, 1898---Scope---At the conclusion of trial the accused/appellant was convicted under S. 302(c) of the P.P.C. and sentenced to 10 years---Validity---When the Trial Court had arrived to the conclusion that prosecution had proved its case beyond doubt causing death of deceased lady, then the normal sentence of death under S. 302(a), P.P.C. or life imprisonment under S. 302(b), P.P.C. was required to have been awarded due to the use of word " shall" in S. 302, P.P.C, but, the appellant was sentenced under S.302(c), P.P.C. for 10 years without assigning any reason forwarding lesser punishment---Section 367(5) of the Criminal Procedure Code, 1898, ('Cr.P.C.') on one hand, empowers the Trial Court that in the offence punishable with death, the Trial Court instead of awarding punishment of death, may award any other sentence upon the accused but for awarding lesser punishment, the Court must give cogent and convincing reason for awarding sentence other than the death---Record revealed that the appellant, in his defense, had not taken any plea of self-defense throughout the trial but the Trial Court in its findings (at relevant page of the judgment) had concluded that the appellant had exceeded in his right of defense which seemed to be a conclusion drawn beyond the facts and circumstances of the case, because there was no plea of self defense in the case from the appellant---Thus when the question of determination of plea of defense was not raised before the Trial court, the impugned judgment was not handed down keeping in view of the provision of S. 367, Cr.P.C---Judgment recorded by the Trial Court was not sustainable in the eyes of law, in circumstances---Impugned judgment was set aside---Case was remanded for…

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