IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Jail Appeal No.S-50/2013

Present:

Mr. Justice Zulfiqar Ali Sangi.

Appellants: Anwar, Waheed and Pathan through Mr. Gulshan Ali Ghumro, Advocate.

Respondent: The State through, Aftab Ahmed Shar

Date of hearing: 16.10.2023.

Date of decision: 16.10.2023.

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Appellants Anwar Ali son of Bhagyal @ Malang, Pathan son of Nabi Bux and Waheed son of Nabi Bux, have assailed the judgment dated 06.07.2013, passed by learned 2^nd Additional Sessions Judge, Khairpur in Sessions case No. 152/2008 arising out of FIR No.15/2008 offence under section 302, 324, 34 PPC Police Station, Pir Jo Goth, whereby they were convicted U/S 302 (b) PPC, and are sentenced to imprisonment for life. They were also directed to pay Rs. 400,000/- each as compensation to the legal heirs of the deceased in equal share as required under section 544-A Cr.P.C. In case of default of non-payment of compensation amount, the accused shall suffer S.I for four months more. The benefit of Section 382 B PPC was also extended to the accused.

2. Precisely, prosecution case is that complainant Rustam Ali lodged FIR at Police Station, Pir Jo Goth district Khairpur stating therein that Abdul Haleem aged about 30 years, was his son, who used to look after the lands. On the eventual day, he left the house on donkey cart for cutting the grass. Complainant along with his PWs were also going ahead, when they reached near house of Moharram Lodro, in common street of the village, where they saw accused Anwar Ali with TT pistol, Waheed with hatchet, Pathan with hatchet and one unidentified accused having stick came from opposite side. Accused Anwar gave hakal to Abdul Haleem and asked that he had illicit terms with his wife, therefore, they would not spare him, saying so accused Anwar fired upon the Abdul Haleem, which hit him on face and he fell down while crying and accused Waheed and Pathan caused him hatchet blows.. The accused Anwar went to his house having pistol in his hand. The complainant party then heard fire shot reports from the house of accused Anwar. Due to serious injuries Abdul Haleem went unconscious and he succumbed to the injuries and died. Complainant then appeared at Police Station and lodged FIR.

3. After usual investigation, the police submitted challan against the appellants/accused before the competent Court of law. The learned trial Court completed all legal formalities and framed charge against the appellants to which they pleaded not guilty and claimed trial, such plea were obtained from them at Exh.3 and 4.

4. The prosecution has examined seven witnesses who all produced certain documents and items in support of their evidence. Thereafter, the side of prosecution was closed. The appellants were examined under Section 342 Cr.PC, wherein they denied the allegations against them and pleaded their innocence. After hearing the parties, trial Court convicted and sentenced the accused persons as stated above.

5. At the very outset, learned counsel for the appellants submits that appellants Waheed and Anwar Ali have served out their sentenced and were released by jail authorities, as such they wishes not to contest the appeal and does not press the same. He next contended that in respect of the appellant Pathan he also not press the same on merits, however, he prays that sentences of appellant Pathan may be converted from 302 (b) PPC to 302 (c) PPC on the ground that appellant is a old age, was convicted on allegation of general in nature for causing hatchet injuries to deceased. Appellant is elder of the family having no male member to look after the family.

6. Learned APG in such circumstances has raised no objection for maintaining sentences, however, on its modification as prayed by the counsel for the appellant.

7. The meticulous perusal of the evidence brought on record is entailing that the prosecution has examined in all seven witnesses. Their evidence on scrutiny founds to be reliable, trustworthy, confidence, inspiring, in such circumstances trial Court has rightly convicted the appellants. Looking to the prayer of the appellant Pathan that he being an old age and infirm person, first offender, having no previous criminal record was convicted on the allegation that he along with accused Waheed caused hatchet blows to the deceased so also accused Anwar fired upon deceased Abdul Haleem. It reflects from the evidence and FIR that three accused persons were charged for single murder and as per medical evidence all the injuries are ante mortem in nature and no specific injury is stated to be the only cause of death. Looking to such observation and having no objection of the learned Additional Prosecutor General, the request of appellant is liable to be considered. The Jail Roll was called which reflects that appellant Pathan served out sentences 12 years, 04 months and 27 days excluding remission and he earned remission for 11 years and 14 days, hence, he has served total sentence in all (24 years 05 months and 11 days). However, the portion of sentence now remains only 01 year 10 months and 19 days, which including the sentences awarded to him on failure to pay compensation.

8. In the above circumstances, and in view of the no objection recorded by learned APG, sentence of appellant is altered from Section 302(b) PPC to 302(c) PPC while maintaining conviction. The appeal is dismissed and the sentence is reduced to the period already served out by him which includes period on failure to pay compensation. Presently, the appellant Pathan is in custody, he shall be released forthwith, if he is not required in any other custody case.

9. Instant appeal stands disposed of in above terms.

J U D G E

M.Ali/steno