IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D -145 of 2010.

Before:-

Mr.Justice Muhammad Iqbal Mahar

Mr.Justice Irshad Ali Shah.

Appellant: Mevo son of Luqman Chanchar, Through Mr. Zulfiquar Ali Sangi, Advocate .

Complainant : Sanwan son of Sajjan Chanchar,

Through Mr. Shamasuddin N.Kobhar, Advocate

The State : Through Mr. Syed Sardar Ali Shah Rizvi,

Deputy Prosecutor General

Date of hearing : 08-05-2019

Date of decision : 08-05-2019.

J U D G M E N T

Irshad Ali Shah, J; The appellant by way of instant Criminal Appeal has impugned the judgment dated 22-10-2010 passed by learned IIIrd Additional Sessions Judge, Mirpur Mathelo, whereby he has been convicted and sentenced as under;

“Accused Mevo is therefore, hereby convicted u/s 302 (b) PPC and he is sentenced to death. He is ordered to be hanged by neck till he is dead. He is also ordered to pay a fine of Rs. 150,000/- to the legal heirs of the deceased and compensation as required u/s 544-A Cr.P.C in equal share and in case of default of payment of fine, he will have to undergo S.I for six months more. However the sentence of death as awarded to the accused is subject to confirmation by the Hon’ble High Court.”.

2. It is the case of the prosecution that the appellant and co-accused Mst. Allahdiwayee in furtherance of their common intention committed Qatl-e-amd of hakim Allah Dino and Mst. Zainab by causing them fire shot injuries, for that the present case was registered against and they on due investigation reported upon by the police to face trial for the above said offence.

3. The appellant and co-accused Mst. Allahdiwayee did not plead guilty and the prosecution to prove it, examined PW/1 PC Raza Muhammad, the corpse bearer at (Ex. 5), he produced receipt, PW/2 Dr. Mumtaz Hussain at (Ex. 6), he produced postmortem reports of deceased hakim Ali and Allah Dino, PW/3 Complainant Sanwan at (Ex.7), he produced copy of FIR, PW/4 Arbi at (Ex.8), PW/5 Tapedar Abdul Rauf at (Ex. 10), he produced sketch of wardhat, PW/6 Dr. Zaib-un-Nisa at (Ex. 11), she produced postmortem report of deceased Mst. Zainab, PW/7 Chanesar at (Ex.12), he is mashir and produced inquest report of deceased Hakim Ali, Allah Dino and Mst. Zainab, memo of place of incident, memo of arrest of accused Mevo and memo of arrest of accused Mst. Allahdiwayee, PW/8 PC Muhammad Iqbal at (Ex. 13), he produced receipt of dead body of deceased Mst. Zainab, PW/9 SIP Bashir Ahmed at (Ex. 14), thereafter learned ADPP for the state closed the said of prosecution vide his statement at Ex. 15.

4. The appellant and co-accused Mst. Allahdiwayee during course of their statements recorded 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 on account of dispute with them over landed property. They examined themselves on oath in disproof of the prosecution allegation, produce certain documents to prove their innocence, but did not examine anyone in their defence.

5. On conclusion of trial, the learned trial Court acquitted co-accused Mst. Allahdiwayee, while convicted and sentenced the appellants, as detailed above and then made a reference u/s 374 Cr.P.C with this Court for confirmation of death sentence so awarded to the appellant.

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. 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”.

12. 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.”

13. The appellant and co-accused Mst. Allahdiwayee were charged for having committed Qatl-e-amd of Hakim Ali, Allah Dino and Mst. Zainab, and evidence which was led by the prosecution was also to that effect.

14. In the impugned judgment, the points which were framed for its determination by learned trial Court were to the following effect;

“1. Whether deceased Hakim @ Hakim Ali, Allah Dino and Mst. Zainab died un-natural death as a result of fire-arm injuries sustained by them?

2. Whether accused Mevo and Mst. Allahdiwayee committed the murder of deceased persons by giving them fire-arm injuries, on the relevant date and time, as alleged?”

15. The perusal of the impugned judgment would reveals that the first point was answered in affirmative. By making such conclusion learned trial Court acquitted co-accused Mst. Allahdiwayee while convicted and sentenced the appellant for having committed an offence punishable u/s 302(b) PPC and sentenced him to death. It does not specify as to whether the death sentence so awarded to the appellant was for single, double, or triple murder, although as said above the appellant was specifically charged for having committed murder of three person (Hakim Ali, Allah Dino and Mst. Zainab). Such omission on the part of learned trial Court has rendered the impugned judgment to be illegal.

16. Beside above, no question was put to any of the appellant during course of their examination u/s 342 Cr.P.C to have his explanation with regard to the sending of the crime empties and weapon to forensic laboratory which too appears to be an irregularity which could not be overlooked.

17. Learned counsels for the parties when were confronted with the above omissions, were fair enough to consent for remand of the matter to learned trial Court to re-write the judgment after recording statement of the appellant u/s 342 Cr.P.C afresh in accordance with law.

18. For what has been discussed above, the impugned judgment to the extent of appellant is set aside with direction to learned trial Court to re-write the judgment after recording statement of the appellant u/s 342 Cr.P.C afresh in accordance with law.

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

Judge

Judge

Nasim/P.A