Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Appeal No. D – 306 of 2019
Conf. Case No. D – 23 of 2019
Cr. Appeal No. D – 307 of 2019
Before :
Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar Ali Sangi
Date of hearing : 25.02.2020.
Date of judgment : 25.02.2020.
Mr. A. R. Faruq
Pirzada assisted by Mr. Faraz Khan, Advocates for appellants / accused.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General and Syed Sardar Ali Shah, Deputy Prosecutor
General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. – Mukhtiar and Ghulam Hyder, appellants were
tried by Mr. Manzoor Ahmed Qazi, Judge, Anti-Terrorism Court, Naushahro Feroze
in Special Case No.71/2015 for offences under Sections 302, 147, 148, 149, PPC
read with Section 7 ATA, 1997. Appellant Mukhtiar was also tried in Special
Case No.72/2015 for offence under Section 24(i) Sindh Arms Act, 2013. Trial
Court, vide judgment dated 16.12.2019 convicted and sentenced the appellants as under:
i.
Accused
Mukhtiar Noondho and Ghulam Hyder Noondho are convicted for offence punishable
u/s 302(b) PPC and awarded death sentence. They shall be hanged by neck
till their death. They shall also pay compensation of Rs.100,000/- (Rupees
one lac) each as contemplated under section 544-A Cr.P.C to the legal heirs of
deceased Hafiz Ghulam Nabi and Muhammad Ilyas, in case of default of payment of
said compensation, accused shall suffer further R.I for one year and if the
compensation amount is recovered, it shall be paid to legal heirs of both the
deceased in accordance with law.
ii.
Accused
Mukhtiar Noondho and Ghulam Hyder Noondho are convicted for offence punishable
u/s 7(1)(a) of Anti-Terrorism Act, 1997 and awarded death sentence. They shall
be hanged by neck till their death. Accused shall also pay fine of Rs.100,000/-
each in default to suffer S.I for one year more.
iii.
Accused
Mukhtiar Noondho is also convicted for the offence punishable u/s 23(1)(a) R/W
S. 25 Sindh Arms Act 2013 and sentenced to suffer R.I for ten years.
Appellant
Mukhtiar was extended benefit of Section 382-B, Cr.P.C. in Crime No.272/2015
under Section 23(i)(a), 25 Sindh Arms Act, 2013. Trial Court made Reference to
this Court for confirmation of death sentence awarded to appellants Mukhtiar
and Ghulam Hyder in terms of Section 374, Cr.P.C.
2. It
may be observed that prior to the filing of the aforesaid Appeals, the same
cases proceeded before learned Judge, Anti-Terrorism Court, Naushahro Feroze.
After regular trial, vide judgment dated 30.05.2017, appellants were convicted
and sentenced to death in the following terms:
“21. In view of my findings
on points No.1 to 3 I have come
to the conclusion that prosecution has proved its case against both
the accused beyond shadow of reasonable doubt. I, therefore, convict accused Mukhtiar son of Sonharo Noondho and
Ghulam Hyder son of Sultan Noondho for the offence punishable u/s 302(b) PPC
R/W Section 7(1)(a) of
Anti-terrorism Act, 1997 and award death sentence. They shall be hanged by neck
till their death. Accused Mukhtiar Noondho and Ghulam Hyder Noondho shall also
pay compensation of Rs.100,000/ (Rupees one lac) each as contemplated under
section 544-A Cr.P.C to the legal heirs of deceased Hafiz Ghulam Nabi and
Muhammad Ilyas, in case of default of payment of said compensation, accused
shall suffer further R.I for one year and if the compensation amount is
recovered, it shall be paid to the legal heirs of both the deceased in
accordance with law. The death sentence shall be executed after confirmation of
the same from Honourable High Court of Sindh. Accused Mukhtiar Noondho is
further convicted for the offence punishable u/s 23(1)(a) R/W S. 25 Sindh Arms Act 2013 and sentenced to suffer
R.I for ten years. Accused Mukhtiar Noondho is given benefit of section 382-B
Cr.P.C. Accused are produced in custody, they are remanded to Central Prison
Sukkur with conviction slip and warrant to serve out the sentence.”
3. Trial
Court made Reference to this Court for confirmation of death sentence and
appellants filed Criminal Jail Appeals No. D-72 and 73 of 2017. By consent, aforesaid Appeals and confirmation
Reference were decided by this Court vide judgment dated 13.11.2019 in the
following terms:
“6. In
the present case, specific sentence for a distinct offences 302 PPC and 7
Anti-terrorism Act, 1997 have not been awarded which is violative of
mandatory provisions of subsections (2) and (3) of Section 367 Cr.P.C.
7. For the above stated reasons and
keeping in view the legal position, criminal appeals Nos. D-72/2017 and D‑73/2017 are partly allowed.
Convictions and sentences recorded by the trial Court vide judgment dated
30.05.2017 are set aside. Case
is remanded back, trial Court
is directed to re-write the judgment within one month after hearing the
learned counsel for the parties in accordance with law. So far confirmation
Reference No. D-08 of 2017 is concerned, in the view of remand of the
case, the same is declined. In the end, Mr. Pirzado submits that parties
intend to file compromise application before the trial Court, as offence U/S 302 PPC is compoundable. Parties
would be at liberty to file it before the trial Court. However, the same
shall be decided by the trial Court, strictly in accordance with law.”
4. After
remand, trial Court after hearing the learned counsel for the parties while
re-writing the judgment dated 16.12.2019, convicted and sentenced the
appellants as stated above.
5. Brief
facts of the prosecution case in Crime No.254/2015 registered at P.S New Jatoi,
District Naushahro Feroze for offences under Sections 302, 147, 148, 149, PPC
read with Section 7 ATA, 1997, as reflected in the impugned judgment of the
trial Court, are as under:
“2. Brief
facts of the prosecution case as per FIR No.254/2015 lodged by Complainant Gulab Khan Noondho are that
accused Allah Ditto Noondho suspected that murder of one Sarwar Noondho
was committed by the uncle of the complainant. He was issuing threats that
they will take revenge of murder of Ghulam Sarwar. On 18.08.2015
complainant along with Mazhar Ali and Abdul Rasheed on one motorcycle,
Hafız Ghulam Nabi and Muhammad Ilyas on another motorcycle left
village Malak towards Moro town due to river flood in Kacha area in order
to purchase domestic articles. Hafiz Ghulam Nabi and Muhammad Ilyas were in
front at the distance of 60/70
steps on their motorcycle from complainant party when they reached near “Khera
House” sign Board at about 9.00 a.m 8 persons alongwith K.K, repeater and
hatchets emerged from the side of water course, thereafter, accused
persons started aerial firing in order to create harassment, then complainant,
Mazhar Ali and Abdul Rasheed stopped at 50/60 paces from Hafiz Ghulam Nabi and Muhammad Ilyas came
down from their motorcycle and took their defence by side of road.
Complainant saw and identified accused Allah Ditto son of Sonharo,
Mukhtiar Ali son of Sonharo, Dhani Bux son of Suhbat, Aslam son of Noor
Muhammad, Ghulam Hyder son of Sultan all armed with K.K Khuda Bux son of
Jhando armed with repeater, Nisar son of Noor Muhammad armed with hatchet
all by caste Noondho, resident of Taluka Moro and one unknown person armed
with hatchet, will be identified if seen again, all accused persons on
point of weapons alighted Hafiz Ghulam Nabi and Muhammad Ilyas from their
motorcycle and accused Mukhtiar made straight fire upon Hafiz Ghulam Nabi
from K.K which hit him, accused Dhani Bux made straight fire with K.K
which also hit him and accused Aslam made straight fire with K.K which
hit him, accused Allah Ditto made straight burst of K.K which hit
Hafiz Ghulam Nabi, who fall down. Accused Ghulam Hyder made straight
fire with K.K which hit Muhammad Ilyas, accused Khuda Bux made straight fire
with repeater which hit at his hand, thereafter, he fell down on
the earth, accused Khuda Bux caused repeater butt blow to
Muhammad Ilyas on his forehead, accused Nisar and one unknown person
also caused hatchet blows to Hafiz Ghulam Nabi on his face, complainant party
remained silent due to fear and force, thereafter, accused persons while
challenging that they have taken revenge of previous murder and went away,
thereafter, complainant party came near them and saw Hafiz Ghulam Nabi was
expired and his face was completely damaged and blood was oozing. Muhammad
Ilyas was also in serious condition. Complainant informed to police of PS Malak
after arranging vehicle shifted dead body as well as injured towards
Taluka Hospital Moro but injured Muhammad Ilyas succumbed his injuries and
expired in the way, complainant party reached at Taluka Hospital Moro
where police of PS Malak was available, after completing post
mortem formalities, complainant party brought dead bodies and after
finishing funeral formalities complainant came at PS and lodged the FIR.
Brief
facts of the prosecution case in Crime No.272/2015 registered at P.S New Jatoi,
District Naushahro Feroze for offence under Section 24(i) Sindh Arms Act, 2013,
as reflected in the impugned judgment of the trial Court, are as under:
3. Brief
facts of the prosecution case are that Inspector Muhammad Essa Dahri
lodged FIR No.272/2015 u/s 24(i) Sindh Arms Act 2013 on 04.09.2015 at PS New Jatoi.
In a case Crime No.254/2015 u/s
302, 147, 148, 149 PPC R/W Section 7 ATA 1997 PS New Jatoi accused
Mukhtiar Noondho and Ghulam Hyder Noondho were arrested. They were brought out
from police lockup for interrogation of case under daily diary No.10 at 1530 hours dated:
04.09.2015 investigation team including HC Khalid Hussain, PC Muhammad
Iqbal Panhwar interrogated accused one by one. Firstly accused Ghulam
Hyder Noondho was interrogated who remained silent during interrogation.
Then accused Mukhtiar Noondho was brought out of lockup for interrogation,
the accused voluntarily accepted his guilt and agreed to produce the
weapon (K.K) used in the commission of offence. They took accused and same
staff in a private car and went at pointed place, while they were moving
from the bank of Sehra Shakh near Mango Garden of Raees Ghaffar Khan Jatoi
alighted from the
car, where two persons were coming on motorcycle they signaled them to
stop. He told them to act as mashirs, they agreed to do so. Thereafter accused led them to
Mango Garden at 1600 hours and
voluntarily produced a plastic Pachka from the bushes (Sar).
Complainant opened the
Pachka and found one K.K with magazine containing five live bullets and
disclosed the same to be unlicensed and accused further told that
recovered K.K is same which was used by him in the murder of Hafiz Ghulam
Nabi Noondho. The K.K and bullets were sealed at the spot in presence of
mashirs. Thereafter they all returned to PS where complainant lodged
instant FIR.”
Joint
trial was held in terms of Section 21M of the Anti-Terrorism Act, 1997.
6. At
the very outset, Mr. A. R. Faruq Pirzada, advocate for the appellants submitted
that after remand of the cases to the trial Court for re‑writing the
judgment, compromise application was filed before the trial Court, but trial
Court kept it pending and for the reasons best known to the Presiding Officer
mentioned in impugned judgment that Mr. Ameenuddin Khaskheli, advocate for the
appellants has withdrawn the compromise application, and trial Court convicted
and sentenced the appellants to death. It is further submitted that Mr. Ameenuddin
Khaskheli, advocate for the appellants has filed affidavit before this Court
that no such statement was given / filed by him before the trial Court. Mr.
Pirzada submitted that offence under Section 302(b), PPC is compoundable with
the permission of the Court, but trial Court deprived the accused of their legal
right. Mr. Pirzada lastly submitted that learned trial Court had no
jurisdiction to try this case in the view of authoritative judgment of Hon’ble
Supreme Court dated 30.10.2019 passed in Criminal Appeals No.95 and 96 of
2019, Civil Appeal No.10-L of 2017 and Criminal Appeal No.63 of 2013 in
the cases of Ghulam Hussain, etc. V/S
The State, etc., but crucial aspect of jurisdiction though raised was
not attended by the trial Court. Mr. Pirzada prayed for remand of case.
7. Mr.
Zulfiqar Ali Jatoi, Additional P.G, after going through the R&Ps, submitted
that compromise application is lying in the R&Ps and it was not decided
during the trial. Learned Additional P.G conceded to submissions made by
advocate for appeals for remand of the case.
8. We
have carefully heard the learned counsel for the parties and perused the
record.
9. Mr.
Ameenuddin Khaskheli, advocate for the appellants before the trial Court, has
filed affidavit before this Court, in which it is mentioned that Mr. Khaskheli had
not given / filed statement before the trial Court for withdrawal of the
compromise application. This Court while remanding the cases to the trial Court
vide judgment dated 13.11.2019 had directed the trial Court to re-write the
judgment after hearing the learned counsel for the parties in accordance with
law and decide the compromise application, if filed, but it is surprising to
note that cases were decided by learned trial Judge, but compromise application
was kept pending. It may be observed that offence under Section 302(b), PPC is
compoundable with permission of Court. It was the duty of trial Judge to have decided
the compromise application.
10. For
the above stated reasons, by consent, Criminal Appeal No. D‑306/2019
and connected Criminal Appeal No. D-307/2019 are partly allowed.
Conviction and sentence recorded by the trial Court vide judgment dated
16.12.2019 are set aside. Cases are remanded back to the
trial Court once again with direction that learned Judge, Anti-Terrorism Court,
Naushahro Feroze shall decide the pending compromise application first strictly
in accordance with law. He will also decide the point of jurisdiction as raised
by Mr. Pirzada in the light of recent judgment of Hon’ble Supreme Court passed
in Criminal Appeals No.95 and 96 of 2019, Civil Appeal No.10-L of 2017
and Criminal Appeal No.63 of 2013 in the cases of Ghulam Hussain, etc. V/S The State, etc. Thereafter, after
hearing the counsel for the parties, a fresh judgment shall be passed within two
(02) months strictly in accordance with law.
11. Confirmation
Reference No. D-23/2019 made by the trial Court in the view of above
development is answered in NEGATIVE.
12. In
the view of above, aforesaid Appeals as well as Confirmation Reference are disposed
of in the above terms.
J U D G E
J U D G E
Abdul Basit