IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Jail Appeal No.S-111 of 2018
Appellants: Jan Mohammad alias Khafai Pahore & another, through Mr. Javed Ahmed Soomro, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Addl. Prosecutor General.
Complainant Through Mr. Abdul Hakeem Brohi, Advocate.
Date of Hearing: 12.09.2022.
Date of Judgment: 12.09.2022.
J U D G M E N T
NAIMATULLAH PHULPOTO, J.- Appellants Jan Mohammad alias Khafai and Mubarak alias Muti, both sons of Ali Bux Pahore, were tried by learned Additional Sessions Judge-V, Shikarpur in Sessions Case No.419/2011 re-State v. Jan Mohammad & others, Crime No.02/2011, registered at P.S Khanpur, for offences under Sections 302, 337-H(2), 114, 148, 149, PPC. After regular trial, vide judgment dated 29.11.2018, appellant Jan Mohammad alias Khafai was convicted for committing qatl-i-amd of deceased Mohammad Ayoub for offence under Section 302(b), PPC as Tazir and sentenced to the imprisonment for life and to pay compensation of Rs.100,000/- to be paid to the LRs of deceased Mohammad Ayoub. Appellant Mubarak alias Muti was convicted for committing qatl-i-amd of Mohammad Siddique for offence under Section 302(b), PPC as Tazir and sentenced to the imprisonment for life and to pay compensation of Rs.100,000/- to be paid to the legal heirs of deceased Muhammad Sidduqie in terms of Section 544-A, Cr.P.C. In case of default thereof the appellants were ordered to suffer S.I. for six months more.
2. Brief facts of the prosecution as narrated by complainant Ali Bux Pahore before the trial Court as PW-1 at Exh.31 are reproduced as under:-
"I am complainant in this case. This incident took place on 02.01.2011 at 4-30 p.m. I own 2/3 acres of landed property. I had given the hand of my daughter Mst. Raheeman in marriage with Din Muhammad about 4/5 years prior to the date of this case. The hand of Mst. Mubarakan the sister of Din Muhammad was given in Nikah to my son Muhammad Siddique. During both the wedlocks, they have no issue. The behavior of Din Muhammad and others with my daughter was not proper, they were quarrel with her on petty matters, and therefore I had made complaint to the nekmards. About 6/7 months of the date of incident of this case, Din Muhammad and others taken away their sister from the house of my son and I have taken my daughter from their house to my house. Din Muhammad and others were forcing me for return of my daughter whereupon I replied them that they are quarrelling with my daughter therefore I will not return her hand to them. My daughter Mst. Raheeman filed family suit at City Court Karachi for dissolution of marriage and the case was pending. The family members of cousin Sadaruddin were intending to go Karachi, therefore I myself, my sons namely Muhammad Ayoub aged about 25/26 years and my son Muhammad Siddique aged about 22/23 years, Muhammad Yousuf, my brother Muhammad Saleh and Haji Wazir, all resident of own house near Village Wazir Pahore were waiting for conveyance near Gul Petrol Pump. Meanwhile, accused persons namely Jan Muhammad alias Kafaee armed with DBBL shotgun, Khan Muhammad alias Katoo armed with shotgun, Din Muhammad alias Jakhroo armed with DBBL shotgun, Mubarak alias Muti armed with DBBL gun, all four sons of Ali Bux Pahore and one unknown accused armed with TT pistol came there on two motorcycle. Accused Jan Muhammad instigated the other accused persons that my sons namely Muhammad Ayoub and Muhammad Siddique were not allowing Mst.Raheeman at the house of Din Muhammad therefore cause their murders. Whereupon accused Khan and Muhammad Mubarak made direct fire shots from their respective shotguns upon my son Muhammad Siddique, which hit him, accused Jan Muhammad and Din Muhammad made direct fire shots from their respective shotguns upon my son Muhammad Ayoub, which hit him, due to fire shots, my both sons fell down, thereafter all the accused went away toward eastern side on same motorcycle while making firing in the air. Accused persons having one CD-70 motorcycle with red colour and other accused was 125. I do not remember the registration number of motorcycle. My son Muhammad Siddique having fire shots on his chest and Muhammad Ayoub having fire shots on the back near shoulder and the blood was oozing and my both sons expired at the spot. I made arrangements of conveyance, thereafter shifted dead bodies of my sons to Taluka Hospital Khanpur and thereafter went to PS and obtained letter for postmortem. After postmortem on next date I lodged FIR at PS Khanpur. Police registered my FIR, read over to me and obtained my signature on it. I see such FIR at Ex.12, which is same, correct and bears my signature. I showed the place of incident to the police. Accused Jan Muhammad and Mubarak present in the Court are same, while remaining accused are not present in Court."
3. After usual investigation, I.O. submitted challan against the appellants/accused for offences under Sections 302, 337-H(2), 114, 148, 149, PPC. Co-accused Din Muhammad alias Jakhro, Khan Muhammad alias Kato and one unknown accused were shown as absconders and trial Court declared absconding accused as proclaimed offenders.
4. Trial Court framed the charge against the appellants for committing qatl-i-amd of deceased persons, namely, Muhammad Ayoub and Muhammad Siddique, for offences under Sections 302, 337-H(2), 148, read with Sections 149, PPC at Exh.28.
5. Prosecution examined in all seven PWs; thereafter, prosecution side was closed. Trial Court recorded statements of the accused under Section 342, Cr.P.C. at Exh.41 & 42. Both appellants claimed false implication in this case and denied the prosecution allegations. Trial Court after hearing the learned Counsel for the parties and assessment of evidence convicted and sentenced the appellants, as stated above, on the basis of individual liability, without determining the common object, as there were two deceased persons.
6. It is not necessary to set out facts of the case in detail, as I propose to set aside the conviction and sentence recorded by trial Court and order for re-writing the judgment in the view of law enunciated in the case of Bashir Ahmed & others v. The State & others (2022 SCMR 1187).
7. Record reflects that trial Court has convicted appellant Mubarak for committing qatl-i-amd of deceased Mohammad Siddique for offence under Section 302(b), PPC as tazir and sentenced him to the imprisonment for life and to pay compensation of Rs.100,000/-, in case of default thereof to suffer S.I. for six months more; Appellant Jan Muhammad has also been convicted for committing qatl-i-amd of deceased Mohammad Ayoub for offence under Section 302(b), PPC as tazir and sentenced him to the imprisonment for life and to pay compensation of Rs.100,000/-, in case of default thereof to suffer S.I. for six months more.
8. It is the matter of the record that charge has been framed against accused by the trial Court at Exh.28 for offences under Sections 302(b) read with Section 149, PPC. At the trial, complainant Ali Bux (PW-1) deposed that incident occurred on 02.01.2011, at 4.30 p.m. At the time of incident accused Jan Mohammad alias Khafai, armed with DBBL shotgun, Khan Mohammad alias Kato, armed with shotgun, Din Mohammad alias Jakhro, armed with DBBL shotgun, Mubarak alias Muti, armed with DBBL gun, all sons of Ali Bux Pahore, and one unknown accused, armed with T.T. Pistol, appeared on motorcycle. Accused Jan Mohammad instigated other accused persons that the sons of the complainant, namely, Mohammad Ayoub and Mohammad Siddique were not allowing Mst. Raheeman to join her husband Din Mohammad and asked them to commit murders; thereafter, accused Khan Mohammad and Mubarak made direct fire upon Mohammad Siddique, and accused Jan Mohammad and Din Mohammad fired at Mohammad Ayoub, both sons of the complainant, who succumbed to the injuries. Thereafter, all the four accused along with unknown accused drove away the motorcycle.
9. In the present case, trial Court has held that prosecution has proved it's case against the appellants at the trial, but appellant Jan Mohammad alias Khafai has been convicted u/s 302(b) PPC and sentenced only for committing qatl-i-amd of deceased Mohammad Ayoub and appellant Mubarak alias Muti has been convicted u/s 302(b) PPC and sentenced for committing qatl-i-amd of deceased Mohammad Siddique. No finding as to the sharing of common object by the appellants along with co-accused in the commission of offence has been recorded by the trial Court, though as per prosecution case appellant Jan Mohammad along with co-accused Din Mohammad (proclaimed offender) fired upon deceased Mohammad Ayoub resulting in his death; and, appellant Mubarak alias Muti along with co-accused Khan Mohammad (proclaimed offender) fired at deceased Mohammad Siddique committing his qatl-i-amd. According to the prosecution evidence also, all the five accused in prosecution of the common object committed qatl-i-amd of both deceased persons, but trial Court has failed to record finding separately regarding both deceased that each accused acted in prosecution of common object. Once it was established that each accused acted in prosecution of the common object or was knowing the ultimate object, then it would be immaterial whether each accused played a role or not. Therefore, it is clear from the impugned judgment that it is passed by the trial Court while ignoring the principle of the common object regarding both murders. Each accused has been convicted and sentenced to each deceased not for both deceased persons. Impugned judgment is squarely in defiance of the intent and spirit of the law, for the reason that there were five accused persons. It was the duty of the trial Court to ascertain the aspect of the common intention or common object at the time of conclusion of the trial when charge is specifically framed under Section 302(b) read with Section 149, PPC. In the case of Bashir Ahmed & others v. The State & others (2022 SCMR 1187) it is held by the Hon'ble Supreme Court that "any judgment which concludes the commission of the offence falling under Section 302(b), PPC in furtherance of the common intention or common object, but decides the lis on the basis of individual liability, as in the present case, would be squarely in defiance of the intent and spirit of the law on the subject."
10. The trial Court has specifically held that prosecution has proved its case against the appellants for committing qatl-i-amd of two deceased persons, namely, Mohammad Ayoub and Mohammad Siddique, but appellant Jan Mohammad has been convicted for committing qatl-i-amd of deceased Mohammad Ayoub u/s 302(b), PPC and appellant Mubarak for committing qatl-i-amd of deceased Mohammad Siddique u/s 302(b), PPC. Finding of the trial Court shows that Sections 148, 149, PPC are also proved, but no finding with regard to the Sections 148, 149, PPC for double murders is recorded by the trial Court. Thus, I have come to the conclusion that the mandatory provisions of section 367, Cr.P.C. have not been followed by trial court. Section 367, Cr.P.C., reads as follows:-
“367. Language of judgment: Contents of judgment. (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court (or from the dictation of such Presiding Officer) in the language of the Court, or in English; and shall contain the point or points for determination, the decision, thereon and the reasons for the decision; and shall be dated and signed by the Presiding Officer in open Court at the time +of pronouncing it (and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him).
(2) It shall specify by 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.
(3) When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the said section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(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.
(5) If the accused is convicted of any offence punishable with death, the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.
(6) For the purposes of this section, an order under section 118 or section 123, subsection (3) shall be deemed to be a judgment.”
11. It is the mandate of subsections (2) and (3) above that when the Court finds accused guilty of one or more offences, then separate sentence must explicitly be awarded at the time of recording conviction. An accused person cannot be presumed or implied to be convicted under any offence rather the sentence should be distinct for each and every offence in which the accused found guilty.
12. Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he was also sentenced under sections 148 and 149 PPC by applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as it is violative of the mandatory provisions of subsections (2) and (3) of section 367, Cr.P.C. which cannot be cured by the provisions of under section 537, Cr.P.C.
13. Without going into the merits of the case, I deem it appropriate to remand the case to the learned trial Court for re-writing of the Judgment. Therefore, appeal is allowed, impugned judgment of the learned trial Court is set aside and the case is remanded back to the learned trial Court with the direction to re-write the Judgment in view of the above observations, within one month of the receiving the case-file. Appeal disposed of accordingly.
JUDGE
Qazi Tahir PA/*