IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D - 54 of 2013.

 

 

                                                Before:-

 

                                                            Mr.Justice Muhammad Iqbal Mahar

                                                            Mr.Justice Irshad Ali Shah

 

Appellants:                             Mukhtiar son of Shah Muhammad and Noor Muhammad son of Shah Muhammad both bycaste Khuhro, through Mr. Haji Shamsuddin Rajper, Advocate .

 

Complainant  :                Nazir Ahmed s/o Ali Asghar   Khuhro,  through Mr. Nisar Ahmed Bhanbhro, Advocate

                                                                                     

The State                               :           Through  Mr.  Khalil Ahmed Mailto,

                                                            Deputy Prosecutor General 

 

Date of hearing               :       07-05-2019         

Date of decision             :       07-05-2019.

                            

J U D G M E N T

 

Irshad Ali Shah, J; The appellants by way of instant Criminal Appeal have impugned the judgment dated 30-07-2013 passed by learned 1st Additional Sessions Judge, Khairpur, whereby they have been convicted and sentenced as under;

“I hereby exercise powers conferred under section 265H(2) Cr.P.C convict accused Mukhtiar and Noor Muhammad for offence punishable under section 302(b)/149 PPC and sentence them to death subject to confirmation by the Honorable High Court of Sindh. Both these accused shall be hanged by the neck till they die. Both these accused are also directed to pay Rs. 200,000 (two lac) each as compensation to the legal heirs of deceased Ali Asghar and Ubedullah u/s 344-A Cr.P.C in case of default in payment of such compensation, they shall undergo short imprisonment for one year more”.

2.                As per FIR, the appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object not only committed Qatl-e-amd of Asghar, Amir Ahmed, Alisher and Ubedullah by causing them fire shot injuries but caused fire shot injuries to PW Naseem, Ali Hassan and Muhammad Hassan with intention to commit their murder for that they were booked and reported upon.

3.                The appellants and co-accused Abdullah and Mehar Ali did not plead guilty and the prosecution to prove it, examined PW/1 complainant Nazeer Ahmed at (Ex. 24), PW/2 Naseem at (Ex. 25), PW/3 Muhammad Uris at (Ex. 26), PW/4 complainant Nazeer at (Ex. 27), PW/5 Naseem Ahmed at (Ex.28), PW/6 Ali Hassan at (Ex. 29), PW/7 Ghulam Murtaza at (Ex. 30), PW/8 Muhammad at (31), PW/9 mashir Ghulam Akbar at (Ex. 32), he produced mashirnama of injuries at (Ex. 32/A), mashirnama of wardhat at (Ex. 32/B), inquest reports of deceased Ubedullah, Amir Ahmed, Ali Asghar and Alisher at (Ex. 32/C to 32/F), mashirnama of recovery of clothes of deceased at (Ex.32/G, mashirnama of arrest of accused Abdul Karim and Abdullah at (Ex. 32/H), PW/10 SIO Shahzaman Baig Dahar at (Ex. 33), he produced chemical report at (Ex.33/A and PW/11 Dr. Ali Bux Khuhro at (Ex. 34). Thereafter learned DDPP for the State closed the prosecution side vide his statement at Ex. 35.

4.                The appellants and co-accused Abdullah and Mehar Ali during course of their examination u/s 342 Cr.PC, denied the prosecution allegation by pleading innocence, by stating that they have been involved in this case falsely by the complainant party due to enmity, they did not examine themselves on oath or anyone in their defense.

5.                On the basis of evidence, so produced by the prosecution, the learned trial Court acquitted co-accused Abdullah and Mehar Ali, while convicted and sentenced the appellants, as detailed above and then made a reference u/s 374 Cr.P.C before this Court for confirmation of death sentence to the appellants.

6.                The appeal filed by the appellant and Reference made by learned trial Court are now being disposed of by this Court through single judgment.

7.                We have heard learned counsel for the parties and perused the record.

8.                At the very outset, it may be stated that by now it is well established that cognizance is taken of an offence and not of offender therefore, the Chapter-XIX of Code has placed Section 221 at top thereby requiring that;

“Every charge under this Code shall state the offence with which the accused is charged.”

 

9.                Reason behind above seems to be nothing but that every ‘offence’ carries its own independent punishment hence always requires its legal disposal either in acquittal or conviction. It needs not be mentioned that no lis could legally be terminated except by way of a verdict of the Court. It is a decision through which the disputes / charges, brought before a Court of law, are determined. Such verdict / decision, in legal parlance, is called a ‘judgment’. Therefore, such a ‘judgment’ must always provide a satisfactory answer to all claims / charges, brought before it; else the purpose thereof shall fail.

10.              In case of Messers MFMY Industries Ltd and others Vs. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR-1550), it has been observed by Honourable Apex Court that;

5. Termination of a lis undoubtedly is through a verdict of a court which is a decision disposing of a matter in dispute before it (the Court) and in legal parlance, it is called a JUDGMENT’. It is invariably known that a Judge finally speaks through his judgment. According to Black’s Law Dictionary, a judgment has been defined to mean ‘A court’s final determination of the rights and obligations of the parties in a case’ and per Henry Campbell Black, A Treatise on the Law of Judgment ‘An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked.’ These definitions are adequately self-explanatory. In our procedural law (civil) , judgment as defined in Section 2(9) of Code of Civil Procedure means “the statement given by the judge of the rounds of a decree or order’. It should be emphasized here that a judgment should supply adequate reasons for the conclusion reached and arrived at and should be reflective of application of proper judicial mind by the Judge and it should not be a mechanical and not speaking judgment in nature.’

11.              The charge framed in the instant case reads as under;

“That on 18-02-2004 at 6-30 pm in the Otaq of complainant Nazir Ahmed Khuhro situated in village Dilawar Khuhro you accused along with juvenile accused Abdul Karim and absconding accused Ali Ahmed and two unidentified persons duly armed with deadly weapons formed unlawful assembly and in prosecution of your common objection fire upon complainant Nazir Ahmed and PWs Naseem Ahmed, Ali Hassan and Muhammad with intention to commit their murder, caused atl-e-amd of Asghar, Amir Ahmed, Ali Sher and Ubeduallh by means of firearm injuries and committed the offence punishable u/s 148, 149, 324, 302 PPC and within the cognizance of this Court’.

12.              The bare perusal of the above charge would reveal that it is jumble and it does not contain penal sections with regard to the injuries sustained by injured/PWs Naseem, Ali Hassan and Muhammad Hassan. Such omission could not be lost sight of.

13.              In Criminal Administration of justice since question is always that of legal disposal of a ‘charge/offence’ therefore, legislature though did not provide any specific mechanism for writing judgment yet have made certain things mandatory which includes disposal of ‘offence’ either in acquittal or in conviction of the accused so charged. The legal position, being so, shall become crystal clear with reference to relevant subsection (s) of Section 367 of the Criminal Procedure Code which are;

(2) It shall specify the 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”.

 

(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”.

 

14.              Therefore, it can be concluded safely that; if there is a departure from above said principle, then there shall never be a satisfactory disposal for the offence for which the accused was charged and tried rather the prosecution and even the defence would be legally justified in seeking an answer to this. It is added that meaning of fair-trial shall also fail, if parties appearing before the Court of law are kept confused of their respective claims / charges. If so, it shall be a negation to what one expects from a ‘judgment’. The emphasis was further detailed by Honourable Apex Court in case of Messers MFMY Industries Ltd and others (supra) by observing that;

“It may be reiterated that without a judgment, there is no concept of justice and / or fruitful outcome of litigation which without any fear of contradiction means that the State lacks and effective justice system. In such a situation, I would, rather, go to the extent of saying that if the Judge/ the Court does not pronounce a judgment for resolving the legal and factual issues involved in a dispute before it at all, the very purpose of the judicial branch of the State will be frustrated and eroded . If there is no judgment in terms of law, the entire judicial setup shall be rendered farce and illusionary, which obviously shall in turn disturb the equilibrium between the pillars of the State upon which it rests, resulting into serious impairment of the functioning of the State.”

15.              Having said so, now is being examined the impugned judgment. The points for determination framed therein reads as under;

“1.     Whether on 18-02-2004 deceased Ali Asghar, Amir Ahmed, Ubedullah and Alisher died un-natural death due to receipt of the firearm injuries on their person?

 

2.       Whether on 18-02-2004 injured Naseem, Ali Hassan and Muhammad Hassan sustained firearm injuries on their person?

 

3.       Whether on 18-02-2004 accused Noor Muhammad, Mukhtiar, Abdullah, Mukhtiar, Mehar along with absconding accused Ali Ahmed and juvenile accused Abdul Karim duly armed with K.Ks formed unlawful assembly, committed the offence of rioting and in prosecution of their common object committed Qatl-i-amd of deceased Ali Asghar, Ameer Ahmed, Ubedullah and Alisher by causing them firearm injuries and also caused firearm injuries to PWs Naseem, Ali Hassan and Muhammad Hassan with intention to commit their Qatl?

4.       What offence, if any is made out against the accused?”

 

 

16.              From above, it is apparent that the charge included different and distant offences, allegedly committed by the appellants and co-accused Abdullah and Mehar Ali therefore, it was always obligatory upon the learned trial Court to have decided ‘acquittal or conviction’ of sent up accused persons from charge of such independent offences.

17.              At this juncture, it would be conducive to state that it was the case of the prosecution that during course of incident the PWs Naseem, Ali Hassan and Muhammad Hassan were also fired and injured allegedly by the appellants and others with intention to commit their murder and point for determination to that effect was also framed by learned trial Court at least twice, surprisingly those were answered ‘as proved’. In such eventuality, it was obligatory upon learned trial Court to have also recorded conviction against the appellants for the said ‘proved point’. It was not done by, for no obvious reason. Such omission on part of learned trial Court could not be overlooked, as it is appearing to be clear departure to mandatory requirement of Section 367(2) and (4) of Criminal Procedure Code.

18.              A part from above, the conviction and sentence, which is recorded against the appellants for an offence punishable u/s 302(b), r/w section 149 PPC, also does not specify as to whether, it is for single, double, triple or quarterable murder, although the appellants were specifically charged for committing murder of four persons (Asghar, Ameer Ahmed, Alisher and Ubedullah).

19.              The concluding part of the impugned judgment has made it clear that learned trial Court  has found the appellants to be guilty for having committed murders of all the four deceased (Asghar, Ameer Ahmed, Alisher and Ubedullah) but surprisingly the ‘sentence/conviction’, so awarded to the appellants seems to be for single ‘murder’. Such omission has rendered the impugned judgment to be illegal.

20.              Beside above, no question was put to any of the appellants during course of their examination u/s 342 Cr.P.C to have their explanation on the report of Chemical Examiner, which too appears to be an illegality which could not be overlooked.

21.              Learned counsels for the parties when was confronted with the above omissions, were fair enough to consent for denovo trial of the appellants for the above said offence.

22.               For what has been discussed above, the impugned judgment to the extent of appellants is set aside with direction to learned trial Court to conduct denovo trial of the appellants in accordance with law.

23.              The instant criminal appeals and Reference made by learned trial Court are disposed of in above terms.

                                                                            

                       Judge

 

 Judge

 

 

Nasim/P.A