THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S–44 of 2017

Appellants:                    Mukhtiar Ali alias Mukhtiar, Akhtiar Ali alias Akhtiar, Shoukat Ali alias Shoukat, Muhammad Qasim alias Qasim and Muhammad Usman alias Usman all by caste Solangi through Mr. Athar Abbas Solangi, Advocate.

Complainant:                Ghulam Hussain through Mr. Javed Ahmed Soomro, Advocate

Respondent:                  The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General     

Date of hearing:            01.12.2022

Date of decision:           02.12.2022

Date of announcement:  08.12.2022

JUDGMENT

AMJAD ALI SAHITO, J:-   The appellants by way of instant Criminal Appeal have impugned Judgment dated 06.05.2017, passed by learned Additional Sessions Judge, Mehar in Sessions Case No.535/2012 (re- The State v/s. Mukhtiar Ali alias Mukhtiar and seven others) and convicted the accused as under:

1. Appellant/accused Mukhtiar is convicted under section 324 P.P.C to suffer R.I for five years and to pay fine of Rs.50000/-, which shall be paid to injured Ghulam Mustafa in terms of Section 544-A Cr.P.C; under section 337-A(ii) P.P.C to suffer five years as Tazir and to pay Arsh, which shall be five percent of Diyat. In case of non-payment of Arsh the accused shall be dealt with in accordance with section 337-X(2) P.P.C; under section 337-A(i) P.P.C to suffer R.I for two years as Tazir and to pay Rs.10000/- as Daman to victim Ghulam Mustafa. In case he fails to pay daman he shall be dealt with in accordance with Section 337-Y(2) P.P.C.

2. Appellant/accused Akhtiar is convicted under section 324 P.P.C to suffer R.I for five years and to pay fine of Rs.50000/- which shall be paid to injured Aijaz Ali in terms of section 544-A Cr.P.C; under section 337-F(V) P.P.C to suffer five years as Tazir and to pay Daman Rs.50000/- to victim Aijaz. In case of non-payment of Daman, the accused shall be dealt with in accordance with section 337-Y(2) P.P.C.; under section 337-F(i) P.P.C accused is convicted to suffer R.I for one year as Tazir and to pay Rs.10000/- as Daman to victim Aijaz. In case he fails to pay the daman, he shall be dealt with in accordance with Section 337-Y(2) P.P.C.

3. Appellant/accused Usman is convicted under section 324 P.P.C to suffer R.I for five years and to pay fine of Rs.50000/-which shall be paid to injured Ghulam Hyder in terms of Section 544-A Cr.P.C; under section 337-F(iii) P.P.C to suffer three years as Tazir and to pay Daman of Rs.50000/- to victim Ghulam Hyder. In case of non-payment of Daman the accused shall be dealt with in accordance with section 337-Y(2) P.P.C.

4. Appellant/accused Qasim is convicted under section 324 P.P.C to suffer R.I for five years and to pay fine of Rs.50000/- which shall be paid to injured Dhani Bux in terms of section 544-A Cr.P.C.; under section 337-F(i) P.P.C to suffer R.I for one year as Tazir and to pay Daman of Rs.20000/- to victim Dhani Bux. In case of non-payment of Daman, the accused shall be dealt with in accordance with section 337-Y(2) P.P.C.

5. Appellant/accused Shoukat is convicted under section 324 P.P.C to suffer R.I for five years and to pay fine of Rs.50000/-, which shall be paid to injured Haji Ghulam Rasool in terms of section 544-A Cr.P.C; under section 337-A(ii) P.P.C to suffer five years as Tazir and to pay Arsh, which shall be five percent of Diyat. In case of non-payment of Arsh the accused shall be dealt with in accordance with section 337-X(2) P.P.C; under section 337-A(i) P.P.C to suffer R.I for two years as Tazir and to pay Rs.10000/- as Daman to victim Ghulam Rasool. In case he fails to pay the daman he shall be dealt with in accordance with section 337-Y(2) P.P.C.

The sentences were ordered to run concurrently and the benefit of section 382-B Cr.P.C was also extended in favour of the accused persons.

2.      The facts in brief necessary for the disposal of instant Criminal Appeal are that on 22.05.2012 at about 1230 hours, complainant namely Ghulam Hussain lodged F.I.R. alleging therein that his brother Ghulam Mustafa had purchased land from one Zail-ul-Abideen. On the day of incident viz 18.05.2012, the complainant alongwith his brothers Ghulam Mustafa, Ghulam Hyder, Dhani Bux and their father Ghulam Rasool and cousin Aijaz were available on the land with Tractor, when at 1630 hours, they saw accused Mukhtiar armed with hatchet, Ramzan armed with Pistol, Akhtiar armed with Repeater, Shoukat armed with hatchet, Haji Qasim armed with gun, Usman armed with Gun, Ameen armed with gun, Kareem Bux armed with hatchet and Raheem Bux armed with gun, came there and started abusing the complainant party and asked them as to why they have come at the land. On which complainant party replied that the land belong to them as they have purchased it, on which the accused party being annoyed and accused Usman made straight fire with intention to commit murder at Ghulam Hyder, which hit on his left leg; accused Haji Qasim made gunshot at Dhani Bux, which hit at his left leg; accused Shoukat caused hatchet blow at the head of P.W Ghulam Rasool; accused Mukhtiar caused hatchet blow to Ghulam Mustafa at his head; accused Akhtiar caused repeater blow to Aijaz and other accused persons caused blows to the complainant’s brothers and cousin.  On hearing noise, P.W Muhammad Ali and Abdul Hameed came over there and intervened with the accused persons in the name of Almighty Allah and rescued the complainant party. The accused while making aerial firing went away; the complainant shifted his injured brothers, father and cousin to P.P. Sindhi Butra, wherefrom he obtained letter for treatment and thereafter shifted them to Taluka Hospital, Mehar, from where the injured were referred to Larkana Hospital and after leaving the injured at Larkana Hospital, the complainant appeared at the Police station and lodged the F.I.R.

3.      The case was sent up for trial to the Sessions Judge and later it was assigned to the Additional Sessions Judge, Mehar for the disposal. Copies were supplied to the accused as Ex.01 and the charge as Ex.02 was framed against the appellants, to which they pleaded not guilty vide their pleas at Ex.02/A to 02/I, respectively.

4.      The prosecution in order to prove the case examined the witnesses and documents. P.W-1, the complainant Ghulam Hussain as Ex.04, he produced F.I.R. as Ex.04/A; P.W-2, Dhani Bux, being injured eye witness, who was examined as Ex.05; P.W-3 Ghulam Hyder, the injured eye witness, who was examined as Ex.06; P.W-4 Ghulam Mustafa, the injured eye witness, who was examined as Ex.07; P.W-5 Ghulam Rasool, the injured eye witness who was examined as Ex.8; P.W-6 Aijaz Ali, the injured eye witness as well as the mashir of place of incident and memo of injuries as Ex.09. He produced memo of injuries as Ex.09/A and memo of site inspection as Ex.09/B; P.W-7 Dr. Rafique Ahmed Shaikh, who was examined at Ex.11. He produced the provisional and final medical certificates of the injured persons from Ex.11/A to 11/I and Letter for FMC at Ex.11/J, he also produced Police Letter at Ex.11/K; and, P.W-8 ASI Muhammad Afzal, who lodged F.I.R. and inspected the site of incident, arrested accused Muhammad Ramzan and recorded 161 Cr.P.C. statements of witnesses at Ex.13. He produced memo of arrest of accused Muhammad Ramzan at Ex.13/A. Thereafter, the prosecution closed its side of evidence as per statement at Ex.14 on 23.04.2016. The accused Muhammad Ramzan expired and such Death Certificate had been placed on record at Ex.15/B by HC Muhammad Khan.

5.      The appellants in their statements recorded u/s 342 Cr. P.C as Ex.16 to 23 respectively, wherein they denied the prosecution allegations by pleading their innocence and stated that actually the complainant party attacked upon them and they received injuries. They did not examine themselves on oath nor opted to bring any defence witness.

6.      The learned trial Court on evaluation of evidence so produced by the prosecution convicted and sentenced the appellants as stated above.

7.      It is contended by learned counsel for the appellants/accused that the appellants being innocent have been involved in this case falsely by the complainant and the evidence which was adduced by the prosecution at trial being inconsistent and doubtful has been believed by learned trial Court without lawful justification; that actually the complainant party due to previous hostility attacked upon the accused party and in quarrel they received the above injuries; that prior to this the parties were on inimical terms and in support of his contentions he by way of statement filed copy of Judgment of acquittal passed by the learned 1^st Additional Sessions Judge, Mehar vide Order dated 06.05.2017 in a counter case being Sessions Case No.534 of 2012 and the Judgment dated 18.05.2018, passed by the learned IInd Additional District Judge, Mehar in Civil Appeal No.120 of 2018 filed against the order dated 07.03.2018, passed by the learned Trial Court in F.C Suit No.128 of 2017 filed by Ghulam Mustafa for perusal.  He has lastly prayed that the impugned judgment is liable to be set aside and the appellants may be acquitted from the charge.

8.      Conversely, learned counsel appearing for the complainant has contended that learned trial Court has passed a well reasoned and well elaborated Judgment; that the evidence adduced by the prosecution is fully supported medical evidence and there are no such major contradictions in the evidence of the complainant and PWs, therefore, the learned trial Court has rightly awarded conviction and sentence to the appellants. He further contended that the appellants / accused are habitual criminals and there are series of F.I.Rs lodged against them at P.S Radhan Station, District Dadu. For ready reference has provided the list of F.I.Rs. alongwith Statement showing the crimes attributed to the appellants/accused.  In support of his contentions, he has relied upon the case reported as Syed Azhar Hussain Shah and another v/s. The State (2019 SCMR 537), Habib Khyzer v/s. The State (2016 YLR 393) and Anwar Khatab and another v/s. The State (2013 P.Cr.L.J 1398).

9.      Learned Deputy Prosecutor General, appearing for the State by supporting the impugned judgment has prayed for dismissal of the instant appeal.

10.    I have heard the learned counsel for the appellants/accused, learned counsel for the complainant and learned Deputy Prosecutor General for the State and have perused material available on the record.

11.    From perusal of record it reveals that both the parties have lodged the cases against each other and admittedly they are on inimical terms since long in connection with a landed property. The learned counsel for the appellants by way of statement has filed list of counter cases made against each other and the learned counsel for the complainant has filed a series of F.I.Rs lodged against the appellants/accused. Perusal of record further revealed that there were several armed persons who attacked upon the complainant party and it is impossible for the complainant to nominate each accused with specific role.

12.    During course of the arguments it revealed from the record that about the same incident another F.I.R. 42 of 2012 for the offence under section 324, 337-F(i), 114, 504, 147, 148 & 140 P.P.C was registered at Police Station Radhan by complainant Muhammad Ramzan. In the cited F.I.R., the complainant party of the instant case has been nominated as accused. If both the F.I.Rs are taken in juxtaposition, the time, date and place of occurrence and parties are the same. 

13.    In criminal administration of justice, the trial Judge seized of a criminal case should know all the attending circumstances of the offences so that to reach a just conclusion regarding the roles of each individual viz-a-viz his innocence and motive behind the offences. The trial court while awarding punishment has also to consider the mitigating circumstances, and this is possible only when the versions of both the sides are before the Court, and for this purpose, the necessary documents of the cross cases are also exhibited for reaching the just conclusion. Apart from the above, it is settled practice that counter cases are tried side by side by the same Court till their conclusion and Judgments are pronounced simultaneously. It was held in Abdul Rehman Bajwa v. Sultan and 09 others (PLD 1981 Supreme Court 522) that:

(21.   The question of the mode of trial of cross cases, one initiated through a private complaint and the other by police through a challan, about the same incident, giving different versions and against two different sets of accused persons, was considered by this Court in Nur Elahi v. The State (PLD 1996 SC 708) and it was held that both the cases should be tried by the same court, one after the other.  The procedure prescribed in Nur Elahi’s case was later considered by this Court in Zulfikar Ali Bhutto v. The State (PLD 1979 SC 1). The circumstances in the cases of Nur Elahi’s and that of Zulfikar Ali Bhutto were materially different, inasmuch as in the last mentioned case the accused in the private complaint as well as the police case were the same persons.  In other words, they were not ‘cross-cases’ in the sense in which the expression is generally understood.  It was, therefore, held that the procedure prescribed in Nur Elahi’s case need not be followed invariably. We may, however, reiterate that propriety demands that whenever the facts or circumstances permit, cross-case giving two different versions of the same incident and have two different sets of accused, should be tried by the same court, together.  As already observed, the logic behind this view is obvious because if the two cases giving different versions of the same incident are not tried together, there would be serious likelihood of conflict in judgment.”

14.    The trial in both the cases should have conducted side by side by the learned Trial Court, as in such like cases; the prime question is the determination of aggressor and aggressed upon.  Such a question cannot be determined without analysis of the evidence of both the cases. The learned Trial Court without conducting a trial in case F.I.R. No.42 of 2012 under sections 324, 337-F(i), 114, 504, 147, 148 & 140 P.P.C registered at Police Station Radhan in a haphazard manner dealt with the trial of the appellants and recorded their acquittal, which exercise undertaken by the learned Trial Court is against the general practice in cases of counter versions.  True that the Code of Criminal Procedure as an absolute rule that all charges and counter-charges must be tried by the same court, however, it is a salutary rule that all charges and counter charges must be tried by the same court, however, it is a salutary practice that when two criminal cases relate to the same incident, they are to be tried and disposed of by the same court of pronouncing judgments on the same day. The two different versions of the same incident, resulting in two criminal cases, are compendiously called “case and counter case” or “cross cases”. I think that the fair procedure which should have been adopted that the trial court should have conducted a trial in both cases side by side. The practical reasons for adopting such procedure is nothing but to staves off the danger of an accused being convicted before his whole case is before the Court; to deter conflicting judgments, being delivered upon similar facts and in reality, the case and the counter case are to all the question as to who was the aggressor and who was aggressed upon.

15.    The upshot of the above discussion as far as the allegation against appellant Muhammad Qasim is concerned that he had made fire upon injured Dhani Bux, but as per medical certificate the injured received injury on his ankle, which is impossible; as such there is conflict between the ocular evidence and medical evidence, therefore, appellant Muhammad Qasim alias Usman is acquitted of the charge however, he is directed to pay fine and daman to the victim as recorded by the learned Trial Court.

16.    As far as the case against appellants Mukhtiar Ali alias Mukhtiar, Akhtiar Ali alias Akhtiar, Shoukat Ali alias Shoukat and Muhammad Usman alias Usman is concerned, instant Criminal Appeal is dismissed, but with the reduction of their sentence to one as already undergone by the appellants. However, the fine/compensation as recorded by the learned Trial Court would remain payable to the injured persons. Appellants are present on bail, their bail bonds are cancelled and surety discharged. Office is directed to return the surety papers to the Surety after proper verification and identification as per rules.

17.    Instant Criminal Appeal stands disposed of in the above terms.

       Judge