IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl.
Jail Appeal No.S-50/2013
Present:
Mr.
Justice Zulfiqar Ali Sangi.
Appellants: Anwar, Waheed and
Pathan through Mr. Gulshan Ali Ghumro, Advocate.
Respondent: The State through,
Aftab Ahmed Shar
Date of hearing: 16.10.2023.
Date of decision: 16.10.2023.
J
U D G M E N T
ZULFIQAR ALI SANGI, J:- Appellants Anwar Ali son of Bhagyal @ Malang, Pathan son
of Nabi Bux and Waheed son of Nabi Bux, have assailed the judgment dated 06.07.2013,
passed by learned 2nd Additional Sessions Judge, Khairpur in
Sessions case No. 152/2008 arising out of FIR No.15/2008 offence under
section 302, 324, 34 PPC Police Station, Pir Jo Goth, whereby they were convicted
U/S 302 (b) PPC, and are sentenced to imprisonment for life. They were also
directed to pay Rs. 400,000/- each as compensation to the legal heirs of the
deceased in equal share as required under section 544-A Cr.P.C. In case of
default of non-payment of compensation amount, the accused shall suffer S.I for
four months more. The benefit of Section 382 B PPC was also extended to the
accused.
2. Precisely, prosecution
case is that complainant Rustam Ali lodged FIR at Police Station, Pir Jo Goth district
Khairpur stating therein that Abdul Haleem aged about 30 years, was his son,
who used to look after the lands. On the eventual day, he left the house on
donkey cart for cutting the grass. Complainant along with his PWs were also going ahead, when they reached near
house of Moharram Lodro, in common street of the village, where they saw
accused Anwar Ali with TT pistol, Waheed with hatchet, Pathan with hatchet and
one unidentified accused having stick came from opposite side. Accused Anwar
gave hakal to Abdul Haleem and asked that he had illicit terms with his wife, therefore,
they would not spare him, saying so accused Anwar fired upon the Abdul Haleem,
which hit him on face and he fell down while crying and accused Waheed and
Pathan caused him hatchet blows.. The accused Anwar went to his house having
pistol in his hand. The complainant party then heard fire shot reports from the
house of accused Anwar. Due to serious injuries Abdul Haleem went unconscious
and he succumbed to the injuries and died. Complainant then appeared at Police
Station and lodged FIR.
3. After usual investigation, the police
submitted challan against the appellants/accused before the competent Court of
law. The learned trial Court completed all legal formalities and framed charge
against the appellants to which they pleaded not guilty and claimed trial, such
plea were obtained from them at Exh.3 and 4.
4. The prosecution has examined seven
witnesses who all produced certain documents and items in support of their
evidence. Thereafter, the side of prosecution was closed. The appellants were examined
under Section 342 Cr.PC, wherein they denied the allegations against them and
pleaded their innocence. After hearing the parties, trial Court convicted and
sentenced the accused persons as stated above.
5. At the very outset, learned counsel
for the appellants submits that appellants Waheed and Anwar Ali have served out
their sentenced and were released by jail authorities, as such they wishes not
to contest the appeal and does not press the same. He next contended that in
respect of the appellant Pathan he also not press the same on merits, however,
he prays that sentences of appellant Pathan may be converted from 302 (b) PPC
to 302 (c) PPC on the ground that appellant is a old age, was convicted on
allegation of general in nature for causing hatchet injuries to deceased.
Appellant is elder of the family having no male member to look after the
family.
6. Learned APG in such circumstances has raised
no objection for maintaining sentences, however, on its modification as prayed
by the counsel for the appellant.
7. The meticulous perusal of the evidence
brought on record is entailing that the prosecution has examined in all seven
witnesses. Their evidence on scrutiny founds to be reliable, trustworthy,
confidence, inspiring, in such circumstances trial Court has rightly convicted
the appellants. Looking to the prayer of the appellant Pathan that he being an
old age and infirm person, first offender, having no previous criminal record was
convicted on the allegation that he along with accused Waheed caused hatchet
blows to the deceased so also accused Anwar fired upon deceased Abdul Haleem.
It reflects from the evidence and FIR that three accused persons were charged
for single murder and as per medical evidence all the injuries are ante mortem
in nature and no specific injury is stated to be the only cause of death.
Looking to such observation and having no objection of the learned Additional
Prosecutor General, the request of appellant is liable to be considered. The
Jail Roll was called which reflects that appellant Pathan served out sentences 12
years, 04 months and 27 days excluding remission and he earned remission for 11
years and 14 days, hence, he has served total sentence in all (24 years 05 months
and 11 days). However, the portion of sentence now remains only 01
year 10 months and 19 days, which including the sentences awarded to him on
failure to pay compensation.
8. In the above circumstances, and in view
of the no objection recorded by learned APG, sentence of appellant is altered from
Section 302(b) PPC to 302(c) PPC while maintaining conviction. The appeal is
dismissed and the sentence is reduced to the period already served out by him
which includes period on failure to pay compensation. Presently, the appellant
Pathan is in custody, he shall be released forthwith, if he is not required in
any other custody case.
9. Instant appeal stands disposed of in
above terms.
J U D G E
M.Ali/steno