THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Revision Application No.D-17 of 2022

Before:

Mr. Justice Shamsuddin Abbasi

Mr. Justice Amjad Ali Sahito

Applicant: Imam Ali Brohi through Mr. Ahmed Bux Abro, Advocate.

Respondents: Nazir alias Raja and The State.

Date of hearing: 02.11.2022

Date of Order: 02.11.2022

JUDGMENT

AMJAD ALI SAHITO, J.- Through this Criminal Revision Application, the applicant/complainant seeks enhancement of sentence awarded to respondent No.1 Nazir alias Raja as in view of the Judgment dated 13.10.2022, passed by learned I-Additional Sessions Judge (MCTC), Larkana, in Sessions Case No.324/2020, arising out of F.I.R bearing Crime No.01/2020, under Sections 302 & 34 P.P.C., registered at P.S Rasheed Waggan, to suffer Rigorous Imprisonment for Life punishable under Section 302(b) P.P.C. He was also burdened with Rs.3,00,000/-(Rupees Three Lacs only) as compensation in terms of section 544-A Cr.P.C., which on recovery shall be given to the legal heirs of deceased Muhammad Ayoob, in default of payment, he shall undergo S.I for six months more.

2. The crux of the prosecution case as per FIR lodged on 10.01.2020 by complainant Imam Ali is that his brother Muhammad Ayoob had a dispute with accused Nazir alias Raja over a plot, on the day of incident on 09.01.2020, Complainant alongwith Muhammad Ayoob, Ali Gul and his nephew Sadam Hussain were available in front of their house, when at about 02:30 pm, they saw and identified accused Nazeer alias Raja, Khan Muhammad, Mukhtiar and Huzoor Bux duly armed with pistols came there and accused Nazeer alias Raja made straight fire from his pistol upon Muhammad Ayoob with intention to kill him; accused Khan Muhammad also made straight fire from his pistol upon Muhammad Ayoob; accused Mukhtiar also made straight fire from his pistol upon Muhammad Ayoob; accused Huzoor Bux also made straight fire from his pistol upon Muhammad Ayoob. Thereafter, Muhammad Ayoob fell down while receiving injuries as blood was oozing, subsequently, he died. Hence the present F.I.R.

3. The learned trial Court after framing the charge recorded evidence of the P.Ws available as Ex.21 to 34 respectively and after hearing the parties and their counsel convicted and sentenced accused Nazeer alias Raja to suffer Rigorous Imprisonment for Life punishable under Section 302(b) P.P.C. He was also burdened with Rs.3,00,000/-(Rupees Three Lacs only) as compensation in terms of section 544-A Cr.P.C., which on recovery shall be given to the legal heirs of deceased Muhammad Ayoob, in default of payment, he shall undergo S.I for six months more.

4. Learned counsel for the applicant has mainly contended that learned Trial Court has not appreciated the material available on record and convicted the accused with lesser punishment. He further added that in view of sub-section (5) of Section 367 Cr.P.C. if the learned trial Court is not intent to award death sentence, then it has to give a reason in its judgment why sentence of death was not passed. Lastly, he has prayed for enhancement of sentence to the accused.

5. We have gone through the material available on record. From perusal of record, it appears that the allegation of firing is attributed against four accused persons that they had conjointly fired upon deceased Muhammad Ayoob, as a result he died on the spot. It further reveals that two 30 bore pistols were recovered from accused Nazeer alias Raja and Mukhtiar Brohi, which were marked as “A” & “B” respectively. The Examiner of the firearm opined that one crime empty bullet marked as “C2” has matched with the pistol marked as “A” in view of matching striker pin marks, breech face marks and ejector marks, whereas the examiner further opined that pistol and bullets of mark “B” were dissimilar, no crime empty bullet marked as “C1, C3 and C4” were fired from pistol marked as “B” in view of non-matching of striker pin marks. The learned trial Court has acquitted accused Mukhtiar Brohi and Khan Muhammad Brohi and one accused namely Hazoor Bux is still absconder, therefore, it is not clear as to which bullet caused fatal injury to the deceased. In our humble view, there are mitigating circumstances in the case as the appellant is of young age and first offender and the prosecution has failed to point out any overt act against him, hence no case of enhancement of the sentence to accused Nazeer alias Raja is made out. However, the appeal filed by respondent No.1 Nazeer alias Raja shall be decided strictly in accordance with law without influence from this judgment. Hence, there seems no need to interfere with the judgment passed by the learned Trial Court.

6. In view of the above discussion, this Criminal Revision Application is dismissed in limine.

JUDGE

Manzoor