IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Jail Appeal No.S-48 of 2018.

Appellants. 1. Abdul Karim son of Haji Muhammad

Hassan Kalhoro.

2. Jan Muhammad s/o Hadi Dino Kalhoro

3. Ishaque son of Hadi Dino Kalhoro.

(Now confined in Central Prison Sukkur)

Through Mr. Shabbir Ali Bozdar advocate.

The State. Through Mr. Khalil Ahmed Maitlo, DPG.

Crl. Jail Appeal No.S-49 of 2018.

Appellants 1. Waseem @ Leemo s/o Muhammad Ishaque

2. Abdul Ghaffar @ Rustam s/o Muhammad

Khan.

3. Rahib son of Muhammad Khan.

4. Ayaz son of Allah Dino.

5. Nazeer son of Allah Dino.

6. Manan son of Abdul Karim.

7. Abdul Jabbar @ Punhal s/o Abdul Karim.

8. Gulab son of Juwan.

9. Maroof son of Jan Muhammad.

10. Awais son of Muhammad Ishaque.

11. Shahnawaz son of Jan Muhammad.

12. Rafique @ Sheesho s/o Jan Muhammad.

All bycaste Kalhoro (Now confined at Central Prison Sukkur).

Through Mr. Shabbir Ali Bozdar advocate.

The Complainant. Through Mr. Abdul Baqi Jan Kakar, advocate

The State. Through Mr. Khalil Ahmed Maitlo, DPG.

Crl. Acquittal Appeal No.D-72 of 2018

Appellant/Complainant Muhammad Siddique son of Mir Muhammad bycaste Kalhoro, Resident village Jumu Kalhoro, Taluka Kandiaro, District Naushahro Feroze.

Through Mr. Abdul Baqi Jan Kakar advocate.

Private Respondents 1. Rasool Bux @ Mehar s/o Abdul Kareem.

2. Ghulam Rasool @ Arbab son of Juwan.

3. Rasheed son of Jan Muhammad.

All bycaste Kalhoro, Resident of village Jumo Kalhoro, Taluka Kandiaro, District Naushahero Feroze.

Through Mr. Shabbir Ali Bozdar, advocate.

The State: Through Mr. Khalil Ahmed Maitlo, DPG.

Crl. Revision Application No.D-42 of 2018.

Applicant/Complainant Muhammad Siddique son of Mir Muhammad bycaste Kalhoro, Resident village Jumu Kalhoro, Taluka Kandiaro, District Naushahro Feroze.

Through Mr. Abdul Baqi Jan Kakar advocate.

Private Respondents 1. Abdul Karim son of Haji Muhammad

Hassan Kalhoro.

2. Jan Muhammad s/o Hadi Dino Kalhoro

3. Ishaque son of Hadi Dino Kalhoro.

All R/O village Jumu Kalhoro, Taluka Kandiaro, District Khairpur.

Through Mr. Shabbir Ali Bozdar, advocate.

Crl. Revision Application No.D-44 of 2018

Applicant/Complainant Muhammad Siddique son of Mir Muhammad bycaste Kalhoro, Resident village Jumu Kalhoro, Taluka Kandiaro, District Naushahro Feroze.

Through Mr. Abdul Baqi Jan Kakar advocate.

Private Respondents 1. Waseem @ Leemo s/o Muhammad Ishaque

2. Abdul Ghaffar @ Rustam s/o Muhammad

Khan.

3. Rahib son of Muhammad Khan.

4. Ayaz son of Allah Dino.

5. Nazeer son of Allah Dino.

6. Manan son of Abdul Karim.

7. Abdul Jabbar @ Punhal s/o Abdul Karim.

8. Gulab son of Juwan.

9. Maroof son of Jan Muhammad.

10. Awais son of Muhammad Ishaque.

11. Shahnawaz son of Jan Muhammad.

12. Rafique @ Sheesho son of Jan Muhammad.

All bycaste Kalhoro, Resident of village Jumo Kalhoro, District Naushahero Feroze.

Through Mr. Shabbir Ali Bozdar, advocate.

Date of hearing. 14-03-2023.

Date of Order. 14-03-2023.

-.-.-.-.-.-.

Irshad Ali Shah J; It is the case of prosecution that the appellants and the private respondents allegedly after having formed an unlawful assembly and in prosecution of their common object, not only committed murder of Mir Muhammad, but caused fire shot injuries to complainant Muhammad Siddique and his witnesses as are named in FIR with intention to commit their murder too and then went away by making aerial firing to create harassment and committing mischief by causing damage to the Tractor of complainant party, for that they were booked and reported upon by the police.

2. On conclusion of trial, accused Rasool Bux @ Mehar, Ghulam Rasool @ Arbab and Rasheed were acquitted of the charge; accused Abdul Karim, Jan Muhammad and Ishaque were found guilty for murder of the deceased and were convicted accordingly while rest of the accused were convicted u/s 324 PPC r/w section 337A(i) 337F(i), 337F(iii), 337F(iv) PPC and sentenced to various terms of imprisonment with fine/Daman etc by learned Sessions Judge Naushahro Feroze vide judgment dated 07-04-2018, which is impugned before this Court by both the parties by preferring the appeal against conviction, appeal against acquittal and revision application for enhancement of the sentence, those now are being disposed off through common judgment.

3. At the very outset, it is pointed out by learned DPG for the State that the charge being jumble is defective one; it does not contain narration with regard to the injuries sustained by PWs Ali Sher and Ali Ahmed which caused impairment of their organ/Atlaf-i-Salahiyat-i-Uzu; the vicarious liability on the part of accused involved has not been determined properly, no finding either of the acquittal or of conviction has been recorded for offence punishable u/s 427, 504 and 506/2 PPC. By pointing out so, he suggested for setting aside the impugned judgment with direction to learned trial Court to conduct denovo trial in accordance with law. In support of his contention he relied upon case of Bashir Ahmed and others Vs. The State & others (2022 SCMR 1187).

4. Learned counsel for the complainant promptly accepted the suggestions of learned DPG for the State. However, learned counsel for the appellants by accepting the above omission prior to remand of the case sought for release of the appellants on bail, who are in custody to face denovo trial as they according to him are in continuous detention for about 10 years.

5. Heard arguments and perused record.

6. The omissions pointed out by learned DPG for the State take support from the record, those being incurable in terms of section 537 Cr.P.C have occasioned in failure of justice and are contrary to fair trial as is prescribed U/A 10-A of the Constitution of Islamic Republic of Pakistan, 1973; consequently the impugned judgment is set aside with direction to learned trial Court to conduct denovo trial after framing the charge against the appellants and acquitted accused afresh in accordance with law and to make disposal of very case expeditiously preferably within three months, after receipt of copy of this judgment.

7. Needless to state that acquitted accused and the appellants, who now are enjoying the concession of bail may join the denovo trial by furnishing fresh surety in sum of Rs. 100,000/- each and P.R bond in the like amount to the satisfaction of learned trial Court; the appellants who are in custody may seek their release on bail in accordance with law on statutory ground or otherwise by filing such application before learned trial Court.

8. The instant Crl. Appeal, Appeal against acquittal and Crl. Revision Application are disposed off accordingly.

J U D G E

J U D G E

Nasim/P.A