JUDGMENT SHEET

IN  THE  HIGH  COURT  OF SINDH, CIRCUIT COURT, LARKANA

 

  Criminal Appeal No.S-54 of 2019

 

DATE                          ORDER WITH SIGNATURE OF JUDGE

 

                For hearing of main case.

14.02.2022.

           

Mr.Saeed Ahmed Bijarani, Advocate for the appellant.

Mr. Nadeem Ahmed Khoso, Advocate for injured PW Shahnawaz.

Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant criminal appeal are that the appellant allegedly with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murder of Rasool Bux by causing him fire shot injuries and then went away by causing fire shot injury to PW Shah Nawaz with intention to commit his murder and making fires in air to create harassment, for that the present case was registered.

2.                     The appellant was charged for the above offence and after due trial was convicted u/s.302(b) PPC and sentenced to undergo imprisonment for Life as Tazir and to pay compensation of rupees Five Lacs to legal heirs of the deceased by learned 1st Additional Sessions Judge/MCTC, Jacobabad, vide judgment dated 22.07.2021, which is impugned by the appellant before this Court by preferring the instant criminal appeal.                       

3.                     In impugned judgment, the material point which was framed for determination by learned trial Court is to the following effect;

“Whether on 20.04.2014, at about 8.00 a.m at the land of complainant situated in deh Hyderpur, Taluka Thul Rehman Nindwani alongwith acquitted accused Allah Bux, Bahadur, Bakhtiar, Atta Muhammad, Sanaullah, Nabidad and Hussain and absconding accused Amanullah, Mehrullah, Hafizullah, Walidad, Dost Muhammad and Shah Nawaz and two unknown culprits duly armed with Kalashnikovs formed an unlawful assembly and in prosecution of their common object committed murder of deceased Rasool Bux by causing him firearm injuries and also caused firearm injuries to PW Shah Nawaz with intention to commit his murder?”

 

4.                     No narration was made in above point with regard to allegation of making fires in air to create harassment on the part of appellant and others at the time of incident. No punishment was awarded to the appellant for being member of an unlawful assembly in order to commit rioting or for causing fire shot injury to PW Shah Nawaz with intention to commit his murder, despite answering the above point in “affirmative” as a whole. Such omission could not be lost sight of and it is contrary to the mandate contained by Section 367 Cr.PC and is not curable under section 537 Cr.PC, simply for the reasons that it has not only prejudiced the appellant in his defence but the State too.

5.                     In case of Farrukh Sayyar and 2 others Vs. Chairman NAB Islamabad and others (2004 SCMR-01), the Honourable Apex Court has held that;

“The Court shall also specify the offence 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. In the present case the learned trial Court overlooked the mandatory provisions of section 367, Cr.P.C. and rendered a judgment which falls short of the requisite standard. Failure to specify the points for determination as required under section 367, Cr.P.C. is an omission which is not curable under section 537, Cr.P.C. and absence of decision on the points for determination and" reasons in the judgment amounts to an illegality which prejudices the case of the accused”.

 

6.                     Learned counsel for the parties when confronted with the above omission, were fair enough to consent for remand of the case.

7.                     In view of above, the impugned judgment to the extent of appellant is set aside with direction to learned trial Court to re-write the same within two months, without being influenced by the finding which has been recorded in earlier judgment.

8.                     It is pointed out by learned counsel for the parties that the Presiding Officer of learned trial Court is same. By pointing out so, they sought for transfer of the case to some other Judge for re-writing of the judgment. The suggestion appears to be reasonable; therefore, the instant case is withdrawn from the file of 1st Additional Sessions Judge/MCTC, Jacobabad and is made over to the file of learned Sessions Judge, Jacobabad, to be disposed of by him or to be assigned for its disposal to any other Additional Sessions Judge of competent jurisdiction within his district, in accordance with law.

9.                     The instant criminal appeal is disposed of accordingly.   

                        JUDGE