IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Cr. Jail Appeal No. S-13 of 2024

 

 

Appellant

 

Soboo s/o Nizamuddin Jatoi

 

 

 

Through Mr. Asif Ali Abdul Razak Soomro, advocate

 

 

 

State

 

Mr. Aitbar Ali Bullo, D.P.G for the State

 

Date of hearing

 

26-03-2025

Date of order

 

26-03-2025

 

 

 

 

 

 

 

 

 

 

 

 

 

 

J U D G M E N T

 

Shamsuddin Abbasi, J. Through instant criminal jail appeal, appellant Soboo s/o Nizamuddin Jatoi, has assailed the Judgment dated 27.03.2024, passed by the learned I-Additional Sessions Judge/MCTC Shikarpur, in Sessions Case No. 02/2021, (re: The State V/S Soboo Jatoi), emanating from Crime No. 150/2020 of P.S. Staurt Ganj Shikarpur, for the offence U/s 25(i) of Sindh Arms Act, 2013, whereby the learned trial court has convicted and sentenced the appellant to suffer R.I for eight years and fine of Rs.200,000/-. In case of default to pay fine, the appellant shall suffer S.I for two years more.

2.                               Relevant facts of the prosecution case as per FIR lodged by the complainant ASI Hidayatullah Marfani being complainant in murder FIR crime NO.149/2020 P.S Stuart Ganj along with police officials including P.C Ariz Muhammad all being duly armed in police uniform while patrolling arrested present accused Soboo S/O Nizamuddin Jatoi at 1700 hours in a public street near his house located at Eid Gah Larai Muhalla Shikarpur and recovered crime weapon viz an unlicensed SBBL gun of 12 bore (number rubbed) and 05 live cartridges in presence of mashirs followed by sealing thereof and writing of memo on the spot and then lodging of FIR against him at P.S on the same date.

3.                               After usual investigation I.O Inspector Azad Ali, who was also I.O in murder FIR submitted challan. In terms of section 265-D Cr.P.C framed charge against him on 19-3-2021 at Exb-3 which was read over and explained in Sindhi language to him asking him that whether he pleads guilty or otherwise or has any defense to make to which he replied that, “I don’t plead guilty and claim to be tried” vide plea at Exb-4 in terms of section 265-E Cr. P.C without taking any defense plea. Per file in hand complainant ASI Hidayatullah (Exh-05) after recording his evidence in main and this case expired naturally.

4.                               At trial, the prosecution has examined as many as five witnesses. The gist of evidence, adduced by the prosecution in support of its case, is as under:-

i)          Complainant cum author ASI Hidayatullah Marfani (PW-1 Exb-5) on 27-10-2022 who tendered in evidence attested copy of relevant entries, original memo of arrest and recovery, FIR and attested P.S Copy of Entry in respect of safe custody of case property (Exh-5/A to 5/D).

ii)        Eye witness cum mashir P.C/3392 Ariz Muhammad Hakror (PW-2 Exb-6) who verified documents already tendered in evidence by complainant to be correct as well as tendered in evidence original memo of site inspection at Exh-6/A.

iii)       I.O Inspector Azad Ali Shaikh (PW-3 Exb-7) who tendered in evidence attested P.S copy of R.C NO.165 dated;23-12-2020 and copy of FSL Report bearing NO.FSL/FD/LRK/OR/FA/2461 dated;31-12-2020 at Exh-7/A & 7/B (original FSL Report tendered in evidence in murder case at Exh-19/B)

iv)        I/C Malkhana WHC Bashir Ahmed (PW-4 Exb-8) who tendered in evidence attested P.S Copy of Property Register NO.19 at Exh-08/A in respect of case proeprty of main murder FIR as well as FIR of this case.

v)         Dispatch official H.C Mir Khan Manjho (PW-5 Exb-10) who saw R.C (Exh-7/A) and verified it to be the same and correct.

Thereafter learned DDA closed the side of prosecution.

5.                               The statement of accused was recorded under section 342 Cr.P.C at Exb-12 in which he denied prosecution evidence but neither opted to state on oath in terms of section 340 (2) Cr.P.C nor opted to produce defense evidence and simply denied evidence.

6.                               On conclusion of trial, the learned trial Court found the appellant guilty of the offence charged with and, thus, convicted and sentenced him as stated in para-1 (supra), which necessitated the filing of the listed appeal.

7.                               The learned counsel for the appellant, after arguing the matter at some length, submits that he would not press this appeal on merits if the conviction and sentences awarded to the appellant are reduced to the period he has already undergone contending that the appellant has no previous criminal record in his credit, he is not a dangerous, desperate and hardened criminal as well as not a previous convict and served sufficient punishment and due to his confinement in jail his family members are passing a miserable life and that the appellant undertakes that he will prove himself as a law abiding citizen and will not indulge in any unlawful act in future.

8.                        On the other hand, the learned D.P.G while supporting the impugned judgment has argued that prosecution has successfully proved its case against the appellant beyond reasonable shadow of doubt, therefore, the appeal merits no consideration and is liable to be dismissed. He, however, has not disputed the submission of learned counsel for the appellant with regard to conversion of sentence into the period already undergone and extended his no objection to that extent.

9.                               I have heard the learned counsel for the appellant and the learned D.P.G for the State and gone through the entire material available before me with their able assistance.

10.                           A keen look of the record reveals all the prosecution witnesses while appearing before the learned trial Court have supported the case of the prosecution and involved the appellant in the commission of offence leaving no occasion for his false implication due to any ill-will or animosity. I am thus, in agreement with the submission of learned D.P.G that the prosecution has successfully proved its case against appellant beyond any reasonable shadow of doubt and the appeal merits no consideration.

11.                           Insofar as the submission of learned counsel for the appellant with regard to reduction of sentence into the period already undergone on the ground that the appellant is not a dangerous, desperate and hardened criminal as well as not a previous convict is concerned, suffice to observe that the appellant has served the substantive sentence of 04 years, 03 months and 06 days and also earned remission of 05 years, 05 months and 13 days as on 26.03.2025 as per jail roll and his unexpired portion of sentence is 03 months and 11 days including period in lieu of fine amount. Total period he remained in jail including remission period is 09 years, 08 months and 19 days.  

12.                           Per learned counsel the family of the appellant is passing a miserable life due to his confinement in jail. Needless to say that normally, it is very difficult for a family to survive without support of earning member of the family. The position, being so, would be nothing but causing misery to the family of the appellant on account of his act. The peculiar facts and circumstances, so pleaded by the counsel for the appellant, having gone unchallenged by prosecution may well be taken into consideration for departing from the normal practice. The appellant also undertakes that he will prove himself a law abiding citizen and will not indulge in any unlawful act in future. He is a first offender and has no previous criminal history in his credit and only earning member of his family as well as served a sufficient sentence, therefore, it would be appropriate that appellant may be given an opportunity to improve himself as a law abiding citizen.

13.                           It is, however, pertinent to note that awarding punishment is only meant to have a balance in the society because all the divine laws speak about hereafter. Thus, conceptually, punishment to an accused is awarded on the concept of retribution, deterrence or reformation so as to bring peace which could only be achieved either by keeping evils away (criminals inside jail) or strengthening the society by reforming the guilty. The law itself has categorized the offences. There are certain offences, the punishment whereof is with phrase “not less than” while there are other sentences which are with phrase “may extend upto”. Such difference itself is indicative that the Courts have to appreciate certain circumstances before setting quantum of punishment in later case which appear to be dealing with those offences, the guilty whereof may be given an opportunity of “reformation” by awarding less punishment which how low-so-ever, may be, will be legal. The concept of reformation should be given much weight because conviction normally does not punish the guilty only but whole of his family.

14.                           Keeping in view the above facts and circumstances of the case, I am of the considered view that prosecution has discharged its burden of proving the guilt of the appellant beyond reasonable shadow of doubt, thus the appeal, insofar as it impugns conviction, is dismissed on merits. However, while entertaining the plea that the appellant is sole bread earner of his family, who is passing a miserable life, and the appellant is not a previous convict, I find it a fit case for departure from the normal practice of determining quantum of sentence. Therefore, in my view it would serve both the purposes of deterrence and reformation, if the sentence is modified and reduced to one already undergone. Accordingly, the sentence awarded to the appellant through impugned judgment dated 27.03.2024 is modified and reduced to one already undergone, which also include the sentence awarded in lieu of fine. The appellant shall be released forthwith if not required to be detained in connection with any other criminal case.

15.                           The instant Criminal Jail Appeal is disposed of with above modification.  

                                                                   Judge

                                                  

Abdul Salam/P.A