IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-26 of 2017
Appellant : Khawand Bux son of Sanjar Jakhrani
Through Mr.Imtiaz Ali Mugheri, Advocate
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Complainant Hasu Jakhrani in person
Date of hearing : 11.10.2018
Date of decision : 19.11.2018
JUDGMENT
IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned the conviction and sentence awarded to him by learned Additional Sessions Judge, Kashmore, 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 Qamber and Mehardil and then went away by misappropriating their money and other belongings and making aerial firing to create harassment, for that the present case was registered.
3. On investigation, the case was challaned by the police, the appellant, co-accused Meer Khan, Mehar and Rehan were charged for the above said offence to which they pleaded not guilty and the prosecution to prove it, examined PW-01 complainant Hasu, produced through him FIR of the present case, PW-02 Gul Muhammad, PW-03 Ali Gul, PW-04 Mashir Liaquat Ali, produced through him memo of arrest and recovery of gun, PW-05 SIP Qamaruddin, PW-06 Medical Officer Dr.Abdul Karim, PW-07 Tapedar Gul Hassan, produced through him sketch of place of incident, PW-08 PC Allam, produced through receipts of delivery of dead bodies of the said deceased to their legal heirs, PW-09 PC Abdul Hameed, produced through memo of arrest, PW-10 HC Ahsan Ahmed, then learned D.P.P by way of statement, produced Danistnama on the dead body of the said deceased, memo of place of incident, memo of arrest of the accused and then closed the side.
4. The statements of appellant and co-accused Meer Khan, Mehar and Rehan were recorded u/s 342 Cr.PC, wherein they 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.
5. On conclusion of trial, the learned trial Court acquitted co-accused Meer Khan, Mehar and Rehan, while convicted and sentenced the appellant, as detailed above, such conviction and sentence is impugned by the appellant before this Court by way of instant criminal appeal.
6. It is contended by learned counsel of the appellant that co-accused Meer Khan, Mehar and Rehan have 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. In support of his contention, he relied upon cases of Nazar Hussain Vs. Ghulam Qadir and another (2003 SCMR-457), 2). Gordil and others vs. The State (1997 PCr.LJ- 730), 3). Ali Sher and others Vs. The State (2007 MLD-1584), 4). The State Vs. Hakim Ali and others (1996 PCr.LJ-231), 5).Muhammad Bashir Vs. The State (1996 MLD-1040) and 6). Ata Muhammad and another Vs. The State (1995 SCMR-599).
7. It is contended by learned A.P.G with the assistance of the complainant that the incident is involving death of two persons and the learned trial Court has not specified as to for which of death of the deceased, the appellant has been convicted and sentenced. By contending so, he sought for remand of the case to learned trial Court for re-writing of the judgment in respect of the appellant.
8. I have considered the above arguments and perused the record.
9. 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 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.”
10. 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 be placed upon 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.’
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. 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 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.
13. Having said so, now is being examined the judgment of learned trial Court (Judge). The perusal whereof shows that the point for determination, framed by learned trial Court (Judge), reads as under;
1. Whether deaths of deceased Mehar Dil and Qamber were unnatural?
2. Whether on 19.03.2012, at 09.00 p.m, near the house of accused Shah Malook, Deh Babur Wari, Taluka Tangwani, present accused alongwith proclaimed offenders, Shah Malook, Punhal, Murad, Shahzado and Dhani Bux @ Dhandho, in the prosecution of their common object, committed rioting with the deadly weapons, committed Qatl-e-Amd of Mehar Dil and Qamber Jakhrani, made fires in the air in order to create harassment and also dishonestly misappropriated original NIC, cash Rs.20000/-, one mobile phone valuing Rs.2000/- of deceased Mehir Dil, original NIC, one gold finger ring of one Tola valuing Rs.53000/- and one citizen wrist watch valuing Rs.3500/- of deceased Qamber Jakhrani or not?
3. What offence, if any, has been committed by the accused?
14. From above, it is apparent that the charge included different and distant offences, allegedly committed by the appellant and others therefore, it was always 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 to the conclusion, so drawn by learned trial Court (Judge), in his judgment, which reads as under;
“In the light of above discussion and the circumstances of the instant case on point No.2, as prosecution has proved its case against accused that on 19.03.2012, at 09.00 p.m, near house of accused Shah Malook, situated in Deh Babarwari, accused Khawand Bux, duly armed with gun committed murder of deceased Qamber, by mean of firearm injuries and during such incident one another innocent person namely Mehardil, had also been murdered at the hands of accused”.
15. After forming above said conclusion, the learned trial Court (Judge) acquitted co-accused Meer Khan, Mehar and Rehan while convicted and sentenced the appellant as under;
“accused Khawand Bux is hereby convicted u/s.265-H(2) Cr.PC for the offence punishable u/s.302 (b) PPC and sentenced him to suffer rigorous imprisonment for life. The accused is also directed to pay Rs.100,000/- (Rupees One Lac) as compensation to the legal heirs of deceased in equal shares, as required in 544-A Cr.PC. In case of default of non-payment of compensation amount, the accused shall suffer S.I for six months more”.
16. Prima facie, the appellant has neither been acquitted nor convicted for offence punishable u/s 430 PPC allegedly for misappropriating belongings of both of the said deceased, which is a clear departure from mandatory requirement of Section 367 (2) and (4) of Criminal Procedure Code. Further, the conviction and sentence, recorded against the appellant for an offence punishable u/s 302 (b) PPC, also 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 (Qamber and Mehrdil). The referred concluding part of the said judgment shall leave nothing ambiguous that learned trial Court (Judge) found the appellant to have committed murders of both of the deceased namely ‘Qamber’ and Mehardil but surprisingly the ‘sentence/conviction’, so awarded, seems to be for one ‘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.
17. In view of the facts and reasons discussed above, the conviction and sentenced 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, after providing chance of hearing to all the concerned.
18. The instant criminal appeal is disposed of accordingly.
JUDGE
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