Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Appeal No. D – 306 of 2019

Conf. Case No. D – 23 of 2019

Cr. Appeal No. D – 307 of 2019

 

 

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

 

 

Date of hearing        :           25.02.2020.

 

Date of judgment     :           25.02.2020.

 

 

Mr. A. R. Faruq Pirzada assisted by Mr. Faraz Khan, Advocates for appellants / accused.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General and Syed Sardar Ali Shah, Deputy Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Mukhtiar and Ghulam Hyder, appellants were tried by Mr. Manzoor Ahmed Qazi, Judge, Anti-Terrorism Court, Naushahro Feroze in Special Case No.71/2015 for offences under Sections 302, 147, 148, 149, PPC read with Section 7 ATA, 1997. Appellant Mukhtiar was also tried in Special Case No.72/2015 for offence under Section 24(i) Sindh Arms Act, 2013. Trial Court, vide judgment dated 16.12.2019 convicted and sentenced the appellants as under:

i.                    Accused Mukhtiar Noondho and Ghulam Hyder Noondho are convicted for offence punishable u/s 302(b) PPC and awarded death sentence. They shall be hanged by neck till their death. They shall also pay compensation of Rs.100,000/- (Rupees one lac) each as contemplated under section 544-A Cr.P.C to the legal heirs of deceased Hafiz Ghulam Nabi and Muhammad Ilyas, in case of default of payment of said compensation, accused shall suffer further R.I for one year and if the compensation amount is recovered, it shall be paid to legal heirs of both the deceased in accordance with law.

ii.                  Accused Mukhtiar Noondho and Ghulam Hyder Noondho are convicted for offence punishable u/s 7(1)(a) of Anti-Terrorism Act, 1997 and awarded death sentence. They shall be hanged by neck till their death. Accused shall also pay fine of Rs.100,000/- each in default to suffer S.I for one year more.

iii.                Accused Mukhtiar Noondho is also convicted for the offence punishable u/s 23(1)(a) R/W S. 25 Sindh Arms Act 2013 and sentenced to suffer R.I for ten years.

            Appellant Mukhtiar was extended benefit of Section 382-B, Cr.P.C. in Crime No.272/2015 under Section 23(i)(a), 25 Sindh Arms Act, 2013. Trial Court made Reference to this Court for confirmation of death sentence awarded to appellants Mukhtiar and Ghulam Hyder in terms of Section 374, Cr.P.C.

2.         It may be observed that prior to the filing of the aforesaid Appeals, the same cases proceeded before learned Judge, Anti-Terrorism Court, Naushahro Feroze. After regular trial, vide judgment dated 30.05.2017, appellants were convicted and sentenced to death in the following terms:

“21.     In view of my findings on points No.1 to 3 I have come to the conclusion that prosecution has proved its case against both the accused beyond shadow of reasonable doubt. I, therefore, convict accused Mukhtiar son of Sonharo Noondho and Ghulam Hyder son of Sultan Noondho for the offence punishable u/s 302(b) PPC R/W Section 7(1)(a) of Anti-terrorism Act, 1997 and award death sentence. They shall be hanged by neck till their death. Accused Mukhtiar Noondho and Ghulam Hyder Noondho shall also pay compensation of Rs.100,000/ (Rupees one lac) each as contemplated under section 544-A Cr.P.C to the legal heirs of deceased Hafiz Ghulam Nabi and Muhammad Ilyas, in case of default of payment of said compensation, accused shall suffer further R.I for one year and if the compensation amount is recovered, it shall be paid to the legal heirs of both the deceased in accordance with law. The death sentence shall be executed after confirmation of the same from Honourable High Court of Sindh. Accused Mukhtiar Noondho is further convicted for the offence punishable u/s 23(1)(a) R/W S. 25 Sindh Arms Act 2013 and sentenced to suffer R.I for ten years. Accused Mukhtiar Noondho is given benefit of section 382-B Cr.P.C. Accused are produced in custody, they are remanded to Central Prison Sukkur with conviction slip and warrant to serve out the sentence.”

3.         Trial Court made Reference to this Court for confirmation of death sentence and appellants filed Criminal Jail Appeals No. D-72 and 73 of 2017. By consent, aforesaid Appeals and confirmation Reference were decided by this Court vide judgment dated 13.11.2019 in the following terms:

“6.       In the present case, specific sentence for a distinct offences 302 PPC and 7 Anti-terrorism Act, 1997 have not been awarded which is violative of mandatory provisions of subsections (2) and (3) of Section 367 Cr.P.C.

7.         For the above stated reasons and keeping in view the legal position, criminal appeals Nos. D-72/2017 and D‑73/2017 are partly allowed. Convictions and sentences recorded by the trial Court vide judgment dated 30.05.2017 are set aside. Case is remanded back, trial Court is directed to re-write the judgment within one month after hearing the learned counsel for the parties in accordance with law. So far confirmation Reference No. D-08 of 2017 is concerned, in the view of remand of the case, the same is declined. In the end, Mr. Pirzado submits that parties intend to file compromise application before the trial Court, as offence U/S 302 PPC is compoundable. Parties would be at liberty to file it before the trial Court. However, the same shall be decided by the trial Court, strictly in accordance with law.”

4.         After remand, trial Court after hearing the learned counsel for the parties while re-writing the judgment dated 16.12.2019, convicted and sentenced the appellants as stated above.

5.         Brief facts of the prosecution case in Crime No.254/2015 registered at P.S New Jatoi, District Naushahro Feroze for offences under Sections 302, 147, 148, 149, PPC read with Section 7 ATA, 1997, as reflected in the impugned judgment of the trial Court, are as under:

“2.       Brief facts of the prosecution case as per FIR No.254/2015 lodged by Complainant Gulab Khan Noondho are that accused Allah Ditto Noondho suspected that murder of one Sarwar Noondho was committed by the uncle of the complainant. He was issuing threats that they will take revenge of murder of Ghulam Sarwar. On 18.08.2015 complainant along with Mazhar Ali and Abdul Rasheed on one motorcycle, Hafız Ghulam Nabi and Muhammad Ilyas on another motorcycle left village Malak towards Moro town due to river flood in Kacha area in order to purchase domestic articles. Hafiz Ghulam Nabi and Muhammad Ilyas were in front at the distance of 60/70 steps on their motorcycle from complainant party when they reached near “Khera House” sign Board at about 9.00 a.m 8 persons alongwith K.K, repeater and hatchets emerged from the side of water course, thereafter, accused persons started aerial firing in order to create harassment, then complainant, Mazhar Ali and Abdul Rasheed stopped at 50/60 paces from Hafiz Ghulam Nabi and Muhammad Ilyas came down from their motorcycle and took their defence by side of road. Complainant saw and identified accused Allah Ditto son of Sonharo, Mukhtiar Ali son of Sonharo, Dhani Bux son of Suhbat, Aslam son of Noor Muhammad, Ghulam Hyder son of Sultan all armed with K.K Khuda Bux son of Jhando armed with repeater, Nisar son of Noor Muhammad armed with hatchet all by caste Noondho, resident of Taluka Moro and one unknown person armed with hatchet, will be identified if seen again, all accused persons on point of weapons alighted Hafiz Ghulam Nabi and Muhammad Ilyas from their motorcycle and accused Mukhtiar made straight fire upon Hafiz Ghulam Nabi from K.K which hit him, accused Dhani Bux made straight fire with K.K which also hit him and accused Aslam made straight fire with K.K which hit him, accused Allah Ditto made straight burst of K.K which hit Hafiz Ghulam Nabi, who fall down. Accused Ghulam Hyder made straight fire with K.K which hit Muhammad Ilyas, accused Khuda Bux made straight fire with repeater which hit at his hand, thereafter, he fell down on the earth, accused Khuda Bux caused repeater butt blow to Muhammad Ilyas on his forehead, accused Nisar and one unknown person also caused hatchet blows to Hafiz Ghulam Nabi on his face, complainant party remained silent due to fear and force, thereafter, accused persons while challenging that they have taken revenge of previous murder and went away, thereafter, complainant party came near them and saw Hafiz Ghulam Nabi was expired and his face was completely damaged and blood was oozing. Muhammad Ilyas was also in serious condition. Complainant informed to police of PS Malak after arranging vehicle shifted dead body as well as injured towards Taluka Hospital Moro but injured Muhammad Ilyas succumbed his injuries and expired in the way, complainant party reached at Taluka Hospital Moro where police of PS Malak was available, after completing post mortem formalities, complainant party brought dead bodies and after finishing funeral formalities complainant came at PS and lodged the FIR.

            Brief facts of the prosecution case in Crime No.272/2015 registered at P.S New Jatoi, District Naushahro Feroze for offence under Section 24(i) Sindh Arms Act, 2013, as reflected in the impugned judgment of the trial Court, are as under:

3.         Brief facts of the prosecution case are that Inspector Muhammad Essa Dahri lodged FIR No.272/2015 u/s 24(i) Sindh Arms Act 2013 on 04.09.2015 at PS New Jatoi. In a case Crime No.254/2015 u/s 302, 147, 148, 149 PPC R/W Section 7 ATA 1997 PS New Jatoi accused Mukhtiar Noondho and Ghulam Hyder Noondho were arrested. They were brought out from police lockup for interrogation of case under daily diary No.10 at 1530 hours dated: 04.09.2015 investigation team including HC Khalid Hussain, PC Muhammad Iqbal Panhwar interrogated accused one by one. Firstly accused Ghulam Hyder Noondho was interrogated who remained silent during interrogation. Then accused Mukhtiar Noondho was brought out of lockup for interrogation, the accused voluntarily accepted his guilt and agreed to produce the weapon (K.K) used in the commission of offence. They took accused and same staff in a private car and went at pointed place, while they were moving from the bank of Sehra Shakh near Mango Garden of Raees Ghaffar Khan Jatoi alighted from the car, where two persons were coming on motorcycle they signaled them to stop. He told them to act as mashirs, they agreed to do so. Thereafter accused led them to Mango Garden at 1600 hours and voluntarily produced a plastic Pachka from the bushes (Sar). Complainant opened the Pachka and found one K.K with magazine containing five live bullets and disclosed the same to be unlicensed and accused further told that recovered K.K is same which was used by him in the murder of Hafiz Ghulam Nabi Noondho. The K.K and bullets were sealed at the spot in presence of mashirs. Thereafter they all returned to PS where complainant lodged instant FIR.”

            Joint trial was held in terms of Section 21M of the Anti-Terrorism Act, 1997.

6.         At the very outset, Mr. A. R. Faruq Pirzada, advocate for the appellants submitted that after remand of the cases to the trial Court for re‑writing the judgment, compromise application was filed before the trial Court, but trial Court kept it pending and for the reasons best known to the Presiding Officer mentioned in impugned judgment that Mr. Ameenuddin Khaskheli, advocate for the appellants has withdrawn the compromise application, and trial Court convicted and sentenced the appellants to death. It is further submitted that Mr. Ameenuddin Khaskheli, advocate for the appellants has filed affidavit before this Court that no such statement was given / filed by him before the trial Court. Mr. Pirzada submitted that offence under Section 302(b), PPC is compoundable with the permission of the Court, but trial Court deprived the accused of their legal right. Mr. Pirzada lastly submitted that learned trial Court had no jurisdiction to try this case in the view of authoritative judgment of Hon’ble Supreme Court dated 30.10.2019 passed in Criminal Appeals No.95 and 96 of 2019, Civil Appeal No.10-L of 2017 and Criminal Appeal No.63 of 2013 in the cases of Ghulam Hussain, etc. V/S The State, etc., but crucial aspect of jurisdiction though raised was not attended by the trial Court. Mr. Pirzada prayed for remand of case.

7.         Mr. Zulfiqar Ali Jatoi, Additional P.G, after going through the R&Ps, submitted that compromise application is lying in the R&Ps and it was not decided during the trial. Learned Additional P.G conceded to submissions made by advocate for appeals for remand of the case.

8.         We have carefully heard the learned counsel for the parties and perused the record.

9.         Mr. Ameenuddin Khaskheli, advocate for the appellants before the trial Court, has filed affidavit before this Court, in which it is mentioned that Mr. Khaskheli had not given / filed statement before the trial Court for withdrawal of the compromise application. This Court while remanding the cases to the trial Court vide judgment dated 13.11.2019 had directed the trial Court to re-write the judgment after hearing the learned counsel for the parties in accordance with law and decide the compromise application, if filed, but it is surprising to note that cases were decided by learned trial Judge, but compromise application was kept pending. It may be observed that offence under Section 302(b), PPC is compoundable with permission of Court. It was the duty of trial Judge to have decided the compromise application.

10.       For the above stated reasons, by consent, Criminal Appeal No. D‑306/2019 and connected Criminal Appeal No. D-307/2019 are partly allowed. Conviction and sentence recorded by the trial Court vide judgment dated 16.12.2019 are set aside. Cases are remanded back to the trial Court once again with direction that learned Judge, Anti-Terrorism Court, Naushahro Feroze shall decide the pending compromise application first strictly in accordance with law. He will also decide the point of jurisdiction as raised by Mr. Pirzada in the light of recent judgment of Hon’ble Supreme Court passed in Criminal Appeals No.95 and 96 of 2019, Civil Appeal No.10-L of 2017 and Criminal Appeal No.63 of 2013 in the cases of Ghulam Hussain, etc. V/S The State, etc. Thereafter, after hearing the counsel for the parties, a fresh judgment shall be passed within two (02) months strictly in accordance with law.

11.       Confirmation Reference No. D-23/2019 made by the trial Court in the view of above development is answered in NEGATIVE.

12.       In the view of above, aforesaid Appeals as well as Confirmation Reference are disposed of in the above terms.

 

 

J U D G E

 

J U D G E

Abdul Basit