OF JUDGMENT WRITING IN CRIMINAL TRIALS

Mr. Justice M. Mahboob Ahmed

Introduction
My duty as a Judge must be "to objectify the law, not my own aspirations, convictions and
philosophies, but those of
men and women of my time". Cordozo in his "Nature of the Judicial Process". Before
discussing the principles of
judgment writing, it seems appropriate to know as to what 'Judgment' means in judicial
parlance. It would be interesting
to note that judgment has not been defined either in the Pakistan Penal Code (XLV of 1860)
or in the Code of Civil
Procedure 1908 or in the Code of Criminal Procedure, (V of 1898). For academic purposes,
therefore, the dictionary
meaning may be resorted to Judgment, according to Oxford Advanced LEARNER's
Dictionary of Current English, by
A.S. Hornby, means giving a decision after trial'. In the Tomlin's Law Dictionary the
judgment has been described as 'the
sentence of law or decisin pronounced by the Court, upon the matter contained in the record'.
The word 'judgment' has also been defined in some of the reported cases. In Nand Lal V.
Emperor (AIR 1936 Bombay)
which was later on followed in Damu V. Sri Dhar (1948) 21 Cal 121, it was defined as
under:-
"A judgment is the expression of the opinion of the Judge or Magistrate arrived at after due
consideration of evidence
and of arguments, if any, advanced before him."
Judgment has been looked at from another angle in Surya Rao V. Sathihiraju (AIR 1948 Mad.
510) in following manner:-
"In civil cases, it is the final order passed in a suit instituted in a court, in criminal cases it is a
final order in a trial
terminating either in a conviction or acquittal of the accused.”
Classification of Judgments
The judgments may be classified as follows:-
1) Class of Court - Civil, Criminal, Revenue;
2) Stage of list - judgments of trial Courts, appellate Courts or Courts of revision;
3) Nature of trial - regular or summary;
4) Nature of dispute - original causes or miscellaneous proceedings.
Classes of Courts
Generally speaking, there are civil, criminal and revenue courts and the type of judgment
would differ in each cases.
On the criminal side, with which we are concerned at the moment there are Courts of
Sessions Judges, Additional
Sessions Judges, Assistant Sessions Judges and the Magistrates of the First, Second and Third
Class.
Stage of Litigation
According to the stage of litigation there are judgments of trial Courts, appellate Courts and
Courts of revision. Even in
appellate judgments, there is consideration difference in the judgments of first appeal and
those of second appeal.
Regular or Summary Trial Judgments may be delivered after regular trial or after a summary
hearing. On the criminal side, summary jurisdiction is
exercised by Magistrates under section 260 of the Code of Criminal Procedure. Judgments in
regular trials are full and
detailed while those under summary trials are brief statements of reasons in support of
findings. Likewise appeals are
generally decided after full hearing. They are, however, also dismissed summarily under
section 421 of the Code of
Criminal Procedure.
Despite these and some other distinguishing features, there are some factors which are
common to all kinds of
judgments.
Form and Requirements of a Judgment
Form
1. Heading;
2. Facts submitted by the prosecution and accused;
3. Points for determination;
4. Decision on these points;
5. Reasons for the decision;
6. Final order convicting or acquitting the accuse;
7. Awarding sentence in case of conviction;
8. Signature and the date of decision and announcement.
Legal Requirements
Reference in this context can be made to sections 366 and 367 of the Code of Criminal
Procedure. The salient features
of section 367 ibid are: (1) that the Judge who records the evidence should record the
judgment or his succeeding Judge
or Magistrate should do so. (2) Then every judgment of a Criminal Court must contain a clear
statement of the points
for determination, the decision thereon and the reasons therefore. In a case from Indian
jurisdiction (AIR 1945 Nag.411)
it was very aptly observed that the judgment should state sufficient particulars to enable a
court of appeal to know that
facts (of prosecution case) are proved and how? Mere copying the contents of the FIR,
reproducing the entire evidence
and recording conviction of an awarding sentence to or acquitting the accused does not
satisfy the requirements of
section 367 ibid (3) The judgment shall ten be signed and dated in open Court by the
Presiding Officer be, it a
Magistrate, an Additional Sessions Judge or a Sessions Judge. (4) The judgment shall then be
pronounced in open Court
either immediately after the termination of the trial or at some subsequent time of which
notice shall be given to the
parties or their counsel. (5) The accused shall, if in custody be brought up, or if not in
custody, be required by the Court
to attend to hear judgment delivered, except where his personal attendance during the trial
has been dispensed with and
sentence is one of fine only or he is acquitted, in either of which case it may be delivered in
the presence of his Counsel.
(6) If the accused is convicted of an offence of Qatl-e-Amd, or Qatle-i-amd not liable to Qisas
or Qatl-i-Shibh-i-Amd or
Qatl-e-Khata and so on so forth the judgment shall record conviction under one of these
offences with the relevant
section of the law and shall also award sentence provided for the offence or any legal
sentence provided for.
Language
The following rules should be kept in mind regarding the language of a judgment: -
1. A judgment should be written in the language of the Court or in English.
2. It should be plain and easily understood. If the judgment is in the English language, the use
of oriental words
should be avoided, except technical, revenue or law terms. Poetic allusions should be
avoided.
3. The judgment should not be prolix or verbose "A prolix judgment is a torture to write and a
torture to read".
4. The language should be sober and temperature and should not be satirical. There should be
no joking in a
judgment. Judges should be dignified and restrained in expression of opinion maintaining
impartiality and discarding
bias.
Written by Presiding Officer
A judgment should not be written by a clerk and signed by the Court. It should be written by
the Presiding
Officer of the Court or from his diction. Section 367(1) Cr.P.C. makes it permissible to dictate
orally to another, but in
that case every page of the judgment should be signed.
Qisas and Diyat
If an accused is or if there are more than one the accused are convicted of Qatl-e-Amd shall,
under section 302 P.P.C.
and subject to the substituted Chapter XVI of the Pakistan Penal Code, be:
a) Punished with death as qisas.
b) Punished with death or imprisonment for life as tazir' having regard to the facts and
circumstances of the case,
if the proof in either of the forms specified in substituted section 304 is not available; or
c) Punished with imprisonment of either description for a term which may extend to twenty-
five years, where
according to the Injunctions of Islam the punishment of qisas is not applicable.
In case the Court accepts the plea of Afw (waiver) in Qatl-e-Amd within the contemplation of
substituted section 309
P.P.C. by a 'wali' or 'aulia', as the case may be, then the Court shall also determine, with
reasons therefore, as to whether
it should be waiver simpliciter or Diyat should also be imposed. There are cases specified in
the Ordinance where there
is no Diyat. In such cases the court may award Arsh (compensation). If it is so decided then
the Court would be required
to award it with reasons therefore and quantum thereof. Qatl-e-Amd not liable to Qisas or
other cases in which Qisas
for Qatl-e-Amd cannot be enforced falling respectively under substituted sections 306 * 307
P.P.C. are required to be
differentiated in the relevant part of the judgment and dealt with accordingly both in
conviction and [Link]
distinction has to be drawn in the judgment in cases of hurt liable to Qisas and those not
liable to Qisas. Substituted section 338 E lays down that subject to the provisions of Chapter
XVI of PPC and section 345 of the Code
of Criminal Procedure, 1898, all offences under the aforesaid Chapter may be waived or
compounded within the
contemplation of substituted sections 309 & 310 P.P.C. The Presiding Officer would be
required to record in the
judgment whether the 'wali' waiving or compounding the offence was competent to do so and
also that he was doing so
voluntarily.
The Determination of Facts and the Application of Law
The duties of a Judge are two-fold: the ascertainment of facts and the application of law,
including the consequent
punishment. The determination of facts also involves the problem of admissibility, cogency
and effect of evidence and
also the question of evidence and method of the Judge.
Application of Law
The Judge has to consider the relevant law on the Statute Book and see which section or
sections, or a part of section
applies to the case in hand.
Discussion of Evidence
Discussion of evidence covers a major portion of the judgment and the right conclusion or
findings depend on question
of fact. Therefore, proper care and attention should be paid to this important part of the
[Link] Judge or
Magistrate has to base his findings on evidence, strictly in accordance with the Qanun-e-
Shahadat. He cannot use his
own knowledge about the character of witnesses or import into his judgment facts other than
those brought through
proper evidence. Obviously he should not base his findings on conjectures.
Punishment
Purpose
In criminal cases the court has to punish the offender as the law of the country defining
offences or crimes ordains a
Magistrate or a Judge to do so. There are several theories of punishment such as the
retributive, preventive, deterrent
and reformative under the responsibility category and the educative and treatment theories,
which fall under the
irresponsible category. Since this aspect is beyond the scope of our concern, therefore, I
would skip over [Link]
in criminal cases under the Ordinance have been covered earlier, therefore, it need not be
reiterated here. Judgments in
cross cases have been a matter of concern in appeals. It must be remembered that charge,
evidence and judgments in
cross cases should be separately recorded. Each judgment should be supported by the
evidence on that file and no
reference of evidence either ocular or circumstantial (including documentary) may be made
which has been recorded on
the file of the cross case unless its primary or secondary evidence has been brought on the file
in hand.
Conclusion