IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-90 of 2009

Appellant                            :   Buxial @ Suhno s/o Qurban Ali Lakhair

Through Mr.Ahsan Ahmed Qureshi, Advocate

Complainant                       :    Ali Akbar Mastoi through

Mr.Habibullah Ghouri, Advocate, 

State                                              :   Through Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing                   :     15.10.2018                 

Date of decision                  :     19.11.2018                           

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned the conviction and sentence which are recorded against him by learned 1^st Additional Sessions Judge, Dadu, for an offence punishable u/s 302 (b) PPC.

2.                The facts in brief necessary for disposal of instant criminal appeal are that the appellant with rest of the culprits, allegedly after having formed an unlawful assembly and in prosecution of their common object, committed Qatl-e-Amd of Anwar and Asghar, by causing them fire shot injuries only to settle their dispute with them and then went away by insulting the complainant party, for that the present case was registered.

3.                At trial, the appellant and co-accused Qurban Ali and Shah Muhammad denied the charge and the prosecution to prove it, examined PW-01 Medical Officer Dr.Santosh Kumar, produced through him postmortem report on dead body of deceased Asghar, PW-02 complainant Ali Akbar Mastoi, produced through him FIR of the present case, PW-03 Hubdar, PW-04 Taj Muhammad, PW-05 ASI Subhan Ali Kandhro, PW-06 Mashir Mashooq Ali, produced through him memo of injuries sustained by injured Anwar (who subsequently died), memo of examination of dead body of deceased Anwar, inquest report on dead body of deceased Anwar, memo of examination of dead body of deceased Asghar, inquest report on dead body of deceased Asghar, memo of place of incident, memo of arrest of appellant and co-accused Qurban Ali, memo of recovery of DBBL gun from the appellant, memo of recovery of clothes of deceased Asghar and Anwar, PW-07 ASI Muhammad Bux, produced through him receipt of delivery of dead bodies of the said deceased to their relatives. SIO/SIP Manzoor Ali, produced through him letter written by him to 1^st Civil Judge & J.M, Mehar, regarding death of deceased Anwar, memo of recovery of DBBL gun, attested copy of FIR which was registered for an offence punishable u/s 13-DAO, reports of chemical examiner and ballistic expert, PW-08 Tapedar Abu Bakar, produced through him sketch of vardat, PW-09 medical officer Dr. Muhammad Umar, produced through him letter of police for conducting postmortem on dead body of deceased Anwar, receipt whereby he handed over two pallets recovered from the dead body of deceased Anwar to police and postmortem report on dead body of deceased Anwar, PW-10 Medical Officer Dr.Hidayat Ali Khoso, produced through him police letter and medical certificate in respect of injuries sustained by deceased Anwar, PW-11 Nizakat Ali and then closed the side.   

4.                The appellant and co-accused Qurban and Shah Muhammad in their statements recorded u/s 342 Cr.PC, denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation. However, the appellant produced true copy of judgment of his acquittal in 13-DAO case and 13 photo stat copies of FIRs registered against the complainant party.

5.                On conclusion of trial, the learned trial Court acquitted co-accused Shah Muhammad while convicted and sentenced the appellant and co-accused Qurban, against their conviction and sentence, they filed the instant criminal appeal before this Court.

6.                It was intimated by the Senior Superintendent, Central Prison, Hyderabad vide his letter No.2242/93, dated 13.05.2017 that appellant Qurban Ali has expired on 04.05.2011. The appeal so preferred by the appellant Qurban Ali as such came to an end logically as result of his death.

7.                It is contended by learned counsel of the appellant that co-accused Shah Muhammad has already been acquitted, while the appellant has been convicted and sentenced by learned trial Court on the basis of same set of evidence, which is against the spirit of natural justice. By contending so, he sought for acquittal of the appellant.

8.                It was contended by learned A.P.G and learned counsel for the complainant that it was a double murder case, learned trial Court has not specified as to for which of the death of deceased, the appellant has been convicted and sentenced. By contending so, they sought for remand of the case to learned trial Court for re-writing the judgment to the extent of the appellant.     

9.                I have considered the above arguments and perused the record.

10.              Since, the prosecution has strongly pleaded the conviction against the appellant to be not within spirit of law and procedure therefore, it would be in all fairness to examine this aspect before dilating any comments on merits of the case. At the very outset, it may well be mentioned that by now it is well established that cognizance is taken of an offence and not of offender therefore, the Chapter-XIX of Criminal Procedure 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.”

11.              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. Reference in this context may well be placed upon the case of Messers MFMY Industries Ltd and others Vs. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR-1550), wherein it has been observed 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 grounds 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.’

12.              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’ in either cases i.e acquittal or conviction. The legal position, being so, shall become crystal clear with reference to relevant subsection (s) of Section 367 of Criminal Procedure Code which reads as under;

(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”.

13.              Therefore, it can safely be concluded that if there has been a departure from above, then there shall never be a satisfactory disposal for the offence for which the accused has been charged and tried rather the prosecution and even the defence would be legally justified in seeking an answer to this. It is added here that meaning of fair-trial shall also fail, if parties appearing before a 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 an 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.

14.              Having said so, now is being examined the judgment, whereby the appellant has been convicted and sentenced. The perusal whereof shows that the point for determination, framed by learned trial Court, reads as under;

1.       Whether deceased Asghar and Anwar have died due to unnatural death?

2.       Whether present accused on 08.11.2003, at 05.00 P.M, being armed with DBBL guns in common street at the shop of complainant situated in village Banho Lakhair and in furtherance of their common intention committed Qatl-e-Amd of Asghar and Anwar by causing them gunshot injuries?

3.       What offence, if any, has been committed by the accused?

15.              From above, it is quite obvious that the charge includes different and distant offences, which allegedly has been committed by the appellant and others therefore, it would have remained obligatory upon the learned trial Court (Judge) to have decided ‘acquittal or conviction’ of sent up accused persons from charge of such independent offences. At this point, it is conducive to refer the conclusion, so drawn by learned trial Court (Judge), in its / his judgment, which reads as under;

“In view of the above discussion and under the circumstances, I am of the considered opinion that prosecution has been able to prove its case against the accused Buxial alias Suhno son of Qurban Ali and Qurban Ali son of Buxial both by caste Lakhair r/o village Banho Lakhair who have caused fire arm injuries to deceased Asghar Mastoi and Anwar Mastoi and committed their murder”.

16.              After making above said conclusion, the learned trial Court (Judge) acquitted co-accused Shah Muhammad while convicted and sentenced the appellant and co-accused Qurban Ali (who now has died) as under;

“I therefore conclude that the case against the accused Buxial alias Suhno and Qurban Ali have been proved beyond any shadow of doubt hence the accused Buxial alias Suhno son of Qurban Ali and Qurban Ali son of Buxial both by caste Lakhair r/o village Banho Lakhair, Taluka Mehar are hereby convicted for offence punishable u/s. 302 (b), 34 PPC and sentenced them to suffer Rigorous Imprisonment for life and to pay fine of Rs.50,000/- each and in case of non-payment of fine they will suffer R.I for six months each. If the amount of fine realized, the same be given to legal heirs of deceased Asghar and Anwar Mastoi”.

17.              Prima facie, the conviction and sentenced, recorded against the appellant is for an offence punishable u/s 302 (b), 34 PPC, it does not specify as to whether it is for single or double murder although the appellant was specifically charged for committing murder of two persons (Anwar and Ashgar). The referred concluding part of the above judgment shall leave nothing ambiguous that learned trial Court (Judge) did find appellant to have murdered both deceased namely ‘Anwar and Asghar but surprisingly the ‘sentence’ , so awarded, seems to be for one / single ‘murder’. In that situation, it could be concluded safely that the provision of Section 367 Cr.PC has not been complied with by learned trial Court (Judge) in letter and spirit. By committing such omission, the learned trial Court (Judge) has committed material illegality, which could not be overlooked or cured by this Court.

18.              In view of above, the conviction and sentence recorded  against the appellant are set-aside with direction to learned trial Court (Judge) to re-write the judgment only to the extent of the appellant, within 30 days hereinafter, by providing chance of hearing to all the concerned.

19.              The instant criminal appeal is disposed of accordingly.

                 JUDGE

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