IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 23 of 2018

Before;

Mr. Justice Irshad Ali Shah

Appellants: Jamaluddin @ Jamalo and Muhammad Umair through Mr. Muhammad Mohsin Khan advocate

The State: Through Mr. Hussain Bukhsh Baloch Additional Prosecution General Sindh

Complainant: Haji Muhammad Aashiq through Mr. Muhammad Akbar advocate

Date of hearing: 16.08.2022

Date of judgment: 16.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants and co-accused Muhammad Rafiq with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object fired and injured complainant Muhammad Aashiq and his nephew Muhammad Yousuf Jamal with intention to commit their murder, eventually Muhammad Yousuf Jamal died of such injuries, for that they were booked and reported upon. After due trial, co-accused Muhammad Rafiq was acquitted while the appellants for said offence were convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- (each) and Diyat money to the legal heirs of the deceased with benefit of section 382-B Cr.P.C by learned IV-Additional Sessions Judge South, Judicial Complex, Jail Road, Karachi vide judgment dated 02.12.2017, which is impugned by the appellants before this Court by preferring the instant appeal.

2. On perusal of the impugned judgment, it transpired that the appellants were found guilty for offence punishable under Sections 302(b) PPC and 324 PPC but they were awarded imprisonment for life with fine and Diyat only which is the punishment for an offence punishable under Section 302(b) PPC. No punishment is awarded to either of the appellant for having committed an offence punishable under Section 324 PPC which as per impugned judgment the prosecution was able to prove against them. Such omission obviously has rendered the impugned judgment to be illegal in terms of mandate contained by Section 367 Cr.P.C.

3. In case of Abdul Ghafoor and others vs. The State and others (2020 P.Cr.L.J 1286), it has been held by Division Bench of Lahore High Court that;

“………It is noticed that in the impugned judgment dated 20.03.2017 the learned trial court convicted Abdul Ghafoor and Noor Ahmed (appellants) under section 302(b), P.P.C. and awarded them death sentence and imprisonment for life respectively. Similarly, they were also convicted under section 148/149, P.P.C. and sentenced to undergo rigorous imprisonment for two years. We have observed that charge against the appellants though was also framed under sections 324, 337-A(i), 337-F(i) and 337-F(iii), P.P.C. on 25.10.2014, however, the judgment impugned herein is silent qua the acquittal or conviction of Abdul Ghafoor and Noor Ahmad (appellants) in these sections. As a necessary corollary it is held that the impugned judgment dated 20.03.2017 is against the mandate of section 367, Cr.P.C……..”

4. Learned counsel for the parties when were confronted with the above omission, were fair enough to say that such omission could only be cured by remanding the matter to learned trial Court for rewriting of the judgment.

5. In view of above, the impugned judgment only to the extent of the appellants is set aside with direction to learned trial Court to rewrite the same independently without being influenced by earlier finding, after providing fair chance of hearing to all the concerned, such exercise to be completed preferably within two months after receipt of copy of this judgment.

6. Instant appeal is disposed of accordingly.

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JUDGE