IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Cr. Rev. Appln. No. S-35 of 2023

 

Applicants

 

Morkhan and others

 

 

Through Mr. Aftab Ahmed Channa, advocate

 

 

 

Complainant

 

Imamuddin

 

 

Through Mr. Muhammad Ibrahim Lashari, advocate

 

The State

 

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

 

Date of hearing

 

14-05-2025

Date of judgment

 

14-05-2025

 

J U D G M E N T

 

Amjad Ali Sahito, J.- The applicants above named were tried by the I-Civil Judge & J.M/MTMC Kandhkot [trial court] vide judgment dated 28.02.2023, passed in Criminal Case No.92/2022 [The State Vs. Mor Khan and others], arising out of Crime No.33/2022 for the offences under sections 337-A(i), F(i), L-2, 506/2, 147, 148, 149 P.P.C, registered at Police Station B-Section, Kandhkot, whereby the applicants/accused were convicted and sentenced as under:-

Accused Mor Khan was convicted for the commission offence and sentenced him as following under sections 337-A(i) P.P.C, to two (02) years rigorous imprisonment as ta’zir & further liable to pay Daman of Rs.10,000/- to be paid to injured namely Mister Ali as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Mehboob alias Mehboob Ali was convicted for the commission offence and sentenced him as following under section 337-A(i) P.P.C, to two (02) y ars rigorous imprisonment as ta’zir & further liable to pay Daman of Rs.10,000/- to be paid to injured namely Umar-ud-Din as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Hafeezullah was convicted for the commission offence and sentenced him as following under section 337-A(i) P.P.C, to two (02) years rigorous imprisonment as ta’zir & further liable to pay Daman of Rs.10,000/- to be paid to injured namely Amanullah as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Aijaz Hussain was convicted for the commission offence and sentenced him as following und r section 337-L(ii) P.P.C, to one (01) year rigorous imprisonment & further liable to pay Daman of Rs.5,000/- to be paid to injured Nazakat Ali as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Asif Ali was convicted for the commission offence and sentenced him as following under section 337-A(i) P.P.C, to two (02) years rigorous imprisonment as ta’zir & further liable to pay Daman of Rs.10,000/- to be paid to injured namely Mst. Rubina Khatoon as compensation for the expenses borne by her on her treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Shoukat was convicted for the commission offence and sentenced him as following under section 337-F(i) P.P.C, to one (01) year rigorous imprisonment as ta’zir & further liable to pay Daman of Rs.8,000/- to be paid to injured namely Mst. Rubina Khatoon as compensation for the expenses borne by her on her treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Gul Muhammad was convicted for the commission offence and sentenced him as following under section 337-A(i) P.P.C, to two (02) years rigorous imprisonment as ta’zir, also convicted for the commission offence and sentenced him as following under section 337-L(ii) P.P.C, to one (01) year rigorous imprisonment & further liable to pay Daman of Rs.10,000/- to be paid to injured namely Zahid as compensation for the expenses borne by her on her treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Abdul Rasool was convicted for the commission of offence and sentenced him as following under section 337-L(ii) P.P.C, (01) one year rigorous imprisonment & further liable to pay Daman of Rs.5,000/- to be paid to injured Hafeezullah as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii) P.P.C.

Accused Mian Bux alias Lal Bux and Khadim Ali were convicted for the commission of offence and sentenced them as following under section 337-L(ii) P.P.C, to (01) one year rigorous imprisonment & further liable to pay Daman of Rs.5,000/-each to be paid to injured Mujeeb-ur-Rehman as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii)P.P.C.

Accused Himath Ali was convicted for the commission of offence and sentenced him as following under section 337-L(ii) P.P.C, (01) one year rigorous imprisonment & further liable to pay Daman of Rs.5,000/- to be paid to injured Imam-ud-Din as compensation for the expenses borne by him on his treatment or in default in payment of daman, accused will be dealt with in a manner prescribed by section 337-Y(ii) P.P.C.

Further, all the accused were also convicted for offences punishable under section 147, 148, 149 P.P.C and sentenced to pay fine of Rs.2000/( two thousand) for each offence in case of default accused will suffer one month simple imprisonment more.

All the sentences awarded to the convicted accused shall run concurrently.

2.                               Being aggrieved by the said judgment of trial court, the applicants/accused impugned the said judgment before learned District Judge Kashmore @ Kandhkot, who transferred the same to II-Additional Sessions Judge, Kandhkot [appellate court]. The learned II-Additional Sessions Judge, Kandhkot after hearing the parties, maintained the judgment of trial court, vide his judgment dated 08.06.2023. However modified the conviction and sentences of applicants, passed in Criminal Appeal No. 05/2023, [Mor Khan and others Vs. The State].

3.                               The crux of prosecution case as per contents of FIR lodged by the complainant Imam-ud-Din, at police station “B” Section Kandhkot are that on 11.05.2022, he was available at his house along with his cousin Mister Ali, Umar-ud-Din, Karam-ud-Din, Hafeezullah, Mujeeb-ul-Rehman, Nizakat Ali, Amanullah, Mst. Rubina, Zahid alias Ghulam Muhammad at about 06:00 am, accused facing trial along with co-accused Ghulam Rasool and one unknown (since declared proclaimed offender) committed the offence of rioting duly armed with deadly weapons viz. Gun and lathies were members of unlawful assembly and committed the offence of causing injuries to complainant and witnesses in prosecution of their common object over the dispute of KARAP allegation

4.                               After usual investigation, the case against the accused was challaned and evidence of the prosecution witnesses and statement of accused was recorded and after hearing the parties, learned trial Court passed the impugned judgment.

5.                               Learned counsel for the applicants/accused contends that though the case against the applicants is fit for their acquittal on merits. However, since they are first offenders, as such, he contends that all the cases of hurt provided for in Chapter XVI, P.P.C. the normal punishment to be awarded to an offender is payment of Arsh or daman and optional additional punishment of imprisonment as Ta’azir provide for the relevant offence can be awarded to an offender where they are previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by them in the name or on the pretext of honor and in the case of such an offender the sentence of imprisonment as Ta’azir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. He contended that neither the applicants are not previous convict, habitual, hardened, desperate or dangerous criminals nor committed the offence on the pretext of honor, therefore, the applicants may be dealt with in view of Section 337-N P.P.C and the sentence to imprisonment for three years for the offence under section 337-F (ii) P.P.C may be set aside and only daman amount as ordered in the impugned judgment is liable to be paid by the applicants.

6.                               On the other hand, learned D.P.G. Sindh supports the impugned judgment; however, he concedes that there is no previous criminal record of the applicants.

7.                               Heard and perused the material available on record.

8.                               On careful perusal of the material available on record, it appears that prosecution has succeeded to establish case under Section 337-A(i), 337-F (i), 337-Y(ii), 337-L(ii) P.P.C and accordingly, the applicants have been convicted and sentenced. However, yet there is section 337-N P.P.C, which ought to have been taken into consideration by the learned trial Court which stipulates that imprisonment by way of Ta'azir can only be imposed if the convict is a "previous convict, habitual or hardened criminal, or has committed the offense in the name or pretext of honor." In this case, the prosecution has not provided any evidence to suggest that the applicants meets the criteria defined in Section 337-N P.P.C. Therefore, he cannot be awarded a sentence of imprisonment by way of Ta’azir.

9.                               Admittedly, the provisions of section 337-N (2) P.P.C are squarely attracted in the case of applicants as the prosecution has not produced any proof to show that the accused is a previous convict, a habitual, hardened, desperate or dangerous criminal, therefore, I am of the considered view that the rigorous imprisonment awarded to the applicants is against the norms of section 337-N P.P.C, hence, the same is set aside. However, the conviction with regard to payment of Daman passed against the applicants payable to the complainant/injured as mentioned in the judgment of learned trial court as well as appellate court is upheld and maintained. The applicants present on bail were directed to deposit the above said amount with the Accountant of this Court, as such, the applicants deposited Daman amount of Rs.149,000/- with the Accountant of this Court and placed on record such deposit receipt. Consequently, his bail bonds stand cancelled and surety discharged. The surety papers shall be returned to the surety by the Additional Registrar after proper verification and identification. Total amount of Daman was calculated as Rs.149,000/-, which was paid by the learned counsel for the applicants. The Accountant of this Court is directed to hand over the said Daman amount to all the injured persons as mentioned in the judgment of appellate court dated 08.06.2023 after issuing notice to him.

10.                           However, the case/evidence against applicants/accused Asif Ali, Aijaz Hussain and Khadim Ali is not proved, as such the conviction and sentences awarded to applicants/accused Asif Ali, Aijaz Hussain and Khadim Ali are hereby set-aside, they are acquitted of the charge. The judgment dated 28.02.2023 passed by the trial court judgment dated 08.06.2023, passed by the appellate court are set-aside to the extent of applicants, namely, Asif Ali, Aijaz Hussain and Khadim Ali. They are present on bail, their bail bonds stand cancelled and surety discharged.

11.                           With the above modification in the impugned judgment, the appeal is accordingly disposed of.

 

 

                                                        J U D G E

 

Abdul Salam/P.A