IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Cr. Rev. Appln. No. D-05 of 2019

 

 

Applicant                      Chatto Khan Suhandro,

Through Mr. Abdul Rehman Bhutto, advocate

 

 

Respondents                 Ghulam Nabi Suhandro& 3 others

                                      Through Mr. Rafique Ahmed K. Abro, advocate

 

The State:                      Through Mr. Muhammad Noonari, 

                                      Deputy Prosecutor General.

 

 

Date of hearing:            21-04-2021.

Date of Decision:          21-04-2021.

Date of Reasons:           22-04-2021.

 

 

J U D G M E N T

 

ZULFIQAR ALI SANGI, J.Through this criminal revision application, applicant/complainant has challenged the judgment dated 12.02.2019, passed by learned Sessions Judge, Jacobabad in Sessions Case No.393/2016 (Re: The State Vs Ghulam Nabi & others), arising out of FIR No.59/2016 of P.S. C-Section Thull for offence under Sections 302,404,34 P.P.C, whereby the learned trial court after conclusion of trial has convicted the respondents/accused u/s 265-H(2) P.P.C and sentenced them to suffer R.I for life and to pay compensation of Rs.2,00,000/- each to be paid to the legal heirs of the deceased as envisaged U/S 544-A Cr.P.C and in case of default they shall further undergo R.I for six months each. Besides, accused Manthar  S/O Abdul Nabi was further convicted for the offence punishable U/S 404 PPC and sentenced to suffer R.I for the period of three years and to pay fine of Rs.20,000/- and in case of default in payment of fine, he was further directed to undergo S.I for one month. The conviction & sentence awarded to Manthar were directed to run concurrently. Therefore, the applicant/complainant has filed the instant criminal revision with a prayer for enhancement of the said sentence from life to death to the respondents. 

2.                           The brief facts of the prosecution case are that the complainant Chatto Khan lodged the F.I.R on 13.04.2016 stating therein that on 08.04.2016 at 09-00 pm, he alongwith his brother Badaruddin, nephew Jaffer Ali and son Inayatullah       were in their house, when his grand-daughter Samia, aged about 09/10 years, went out of the house. Subsequently, they heard cries of Samia and went outside the house and saw 4 unknown culprits duly armed with T.T pistols were strangulating Samia and on seeing complainant party two of the accused persons pointed their pistols upon them, thereafter, accused removed the golden ear-rings from the ears of Samia and fled away. The complainant party found that Samia died on the spot and the complainant lodged the above FIR.

3.                           After the FIRinvestigation was started and after its completion the report under section 173 Cr.P.C was filedbefore the competent court of law, where from the case was transferred to the trial court for its disposal according to the law.Formal charge was framed against accused persons Ghulam Nabi, Manthar and Ahmad to which they pleaded not guilty and claimed trial.

4.                           The prosecution in order to prove its case examined complainant Chatto Khan who produced the FIR. BadaruddinPW-2 was examined who produced his statement U/S 164 Cr.P.C. Dr. Romana PW-3 was examined and she produced carbon copy of lash chakas form and postmortem report of deceased Samia. MashirKausarNiazi PW-4 was examined who produced mashirnama of inspection of dead body, Danistanama of the deadbody, mashirnama of recovery of blood stained cloths of deceased, mashirnama of inspection of place of incident, mashirnama of recovery of 08 golden ear-rings, Tapedar Imdad Ali PW-5 was examined who produced sketch of place of incident. PC Khamiso Khan PW-6 was examined who produced mashirnama of arrest of accused and recovery of unlicensed weapons and bullets. I/O ASI Jaffer Ali PW-7 was examined who produced FSL report, two Chemical Reports, carbon copies of DD entries. Thereafter, learned I/C DPP for the State submitted statement alongwith original copy of receipt of dead body by the complainant and then closed the side on behalf of the prosecution.

5.                           The statements of accused persons were recorded u/s 342 Cr.P.C wherein they denied the allegations of the prosecution and stated that they are innocent and have falsely been involved by the complainant party due to dispute over landed property. However they neither examined themselves on oath U/S 340(2) Cr.P.C, nor examined any witness in their defence.

6.                           After hearing the learned counsel for the applicant/complainant, learned counsel for the respondents/accused and learned A.D.P.P for the State, the learned Sessions Judge, Jacobabad passed the judgment dated 12.02.2019 and convicted the respondents/accused. Being aggrieved by and dissatisfied with the impugned judgment, the applicant/complainant has filed the instant criminal revision application for enhancement of the sentence from imprisonment of life to death.

7.                           Learned counsel for the applicant/complainant has argued that judgment passed by the trial court is contrary to law and facts, hence the punishment so awarded to respondents/accused is less then what the law stipulates; that a minor girl became victim of atrocities of respondents and finally she was murdered brutally only for golden ear-rings, which act of respondents shows their true face and brutality; that respondents have created sense of terror in security in the mind of people of vicinity; that learned trial court has admitted that the prosecution has successfully proved its case against the respondents/accused inspite of that trial court has awarded lesser punishment of only life imprisonment, by doing so the trial court has not administered justice to the parents of innocent baby girl. He has lastly submitted that looking to the gravity, nature, brutality of offence, the respondents are not entitled for any lenient view and they are liable for maximum punishment for death, therefore, he has prayed for allowing this criminal revision application.

8.                           Learned counsel for the respondents has contended that the respondents are innocent and have falsely been implicated in this case by the complainant, they have also filed Cr. Jail Appeals No. S-11, 12 and 13 of 2019 against their conviction and sentence awarded by the trial court; that there is delay of 5 days in lodgment of FIR and despite such delay, the names of the accused persons are not mentioned in FIR; thatthere is also delay in recording the statements U/S 161 and 164 Cr.P.C; that the alleged weapons were foisted upon the accused persons;that there are material contradictions in the evidence of the complainant and PWs, which create reasonable doubt in the prosecution case. He has prayed that the Cr. Revision Application may be dismissed, however he submit he will pray for the acquittal of the accused persons at the time of hearing of their appeal against the conviction which appeal is of single bench to decide.

9.                           Conversely, learned A.P.G has argued that prosecution has examined 7 witnesses, who have fully supported the prosecution case on material points. He further argued that during investigation, the I/O inspected the place of incident and recovered blood stained blade, blood stained piece of brick from the place of incident and also recovered blood stained gold ear-rings on pointation of the accused and sent the same to Chemical Examiner who issued chemical reports that the same articles stained with human blood. He further argued the I/O has arrested the accused persons and recovered unlicensed T.T pistols from accused Ghulam Nabi and Manthar & sent the same to Forensic Science Laboratory and such FSL report produced on the record which shows that the said weapons were in working condition, hence the prosecution has proved its case beyond shadow of reasonable doubt. He however not supported the Revision application and stated that the trial court in its findings on point No 03 gave reasons for awarding lessor punishment for imprisonment for life and such reasoning of the trial court is in accordance with law and not to be interfered.

10.                        We have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.

11.                        The issue before us in this revision application is only in respect of the enhancement of the sentence of the respondents who were convicted by the learned trial court for imprisonment of life. However for the acquittal or otherwise a separate jail appeal No. S- 11, 12 and 13 of 2019 are pending and the same may be decided by a single bench.

12.                        We have gone through the impugned judgment and found that the trial court given reasons for awarding lessor sentence to the respondents in para No. 24 of its judgment and the same is re-produced as under:-

24.                   In view of above discussion and findings given on point No.01 and 02, I am of the considered view that the prosecution has successfully proved its case against the accused persons Ghulam Nabi S/O Manthar Suhundro, Manthar S/O Abdul Nabi Suhundro and Ahmed S/O Deen Muhammad Suhundro, hence, they are convicted U/S 265-H(2) Cr.P.C. While considering the question of sentence, I feel that it is not certain from the evidence on record that who has specifically caused murder of the accused, apparently, all the present and absconding accused persons in furtherance of their common intention strangulated the deceased and caused piece of brick blows to the deceased, it constitutes a mitigating or extenuating circumstance justifying lesser punishment/sentence U/S 302 (b) PPC as Tazir r/w Section 34 PPC, besides, the accused persons belong to one & the same family, therefore, after taking guidance from the case of Muhammad Yakoob versus the State, reported in 2008 SCMR-1082, the above named accused persons are sentenced to undergo R.I for life and to pay compensation of Rs.2,00,000/- each to be paid to the legal heirs of the deceased as envisaged U/S 544-A Cr.P.C and in case of default they shall further undergo R.I for six months each. Besides, accused Manthar  S/O Abdul Nabi is further convicted for the offence punishable U/S 404 PPC and sentenced to suffer R.I for the period of three years and to pay fine of Rs.20,000/- and in case of default in payment of fine, he shall further undergo S.I for one month. The conviction & sentence awarded to accused Manthar shall run concurrently. The accused persons remained in custody since the day of their arrest viz 27.04.2016, hence, they should be given benefit of Section 382-B Cr.P.C. They are produced in custody and are remanded to Central Prison Larkana through the Superintendent District Prison Jacobabad with conviction warrant and conviction slips to serve out the conviction and sentences awarded to them, as mentioned above.

13.     In the similar circumstances where trial court awarded life imprisonment to the accused and the High court enhanced the sentence by allowing revision application filed by the complainant and awarded death sentence, However, Honourable Supreme Court set-aside the view taken by the High Court and restored the conviction awarded by the trial court in case ofMuhammad Riaz and another V. The State and another (2007 SCMR 1413), it was held as under:-

6. A glance at the particulars of injuries would clearly show that these injuries were caused from some distance. In the ordinary course of events, it would thus, be difficult to ascertain as to which of the injuries was caused by which of the appellants. Even one of the injuries could have been caused by the fire attributed to co-accused Abdul Khaliq who stands acquitted at the trial and is, no longer available before this Court in the present appeal and petition for leave to appeal. The Medical Officer has pointed out that both injuries were sufficient to cause death in the ordinary course of nature. It would thus, mean that both the injuries were individually and collectively sufficient in the ordinary course' of nature to cause the death of the deceased. During the course of cross-examination, Medico-Legal Expert did not deny the possibility that both the injuries on the person of the deceased could be the result of a single fire. Since it is very difficult and not easily ascertainable as to which of the accused out of three assailants was responsible for causing these injuries, discretion in the matter of sentence exercised by the trial Court in our considered view does not suffer from perversity or any arbitrariness.

14.              Thus based on the above particular facts and the circumstances of the case we do not find any substance for enhancement of the sentence in the present case, therefore we dismissed the revision application filed by the complainant against the respondents and the show-causes notice issued by this court to the respondents vide order dated: 11-11-2020, is hereby vacated.

15.              These are the reasons of our short order dated: 21-04-2021.

                                                                             J U D G E

                                                          J U D G E