IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-86 of 2023

Criminal Appeal No.S-06 of 2024

Appellants:                   1). Juwario s/o Sohrab Choliyani,

                                      Through Mr.Saeed Ahmed Bijarani, Advocate

2). Dil Murad @ Kando s/o Ismail @ Muhammad Ismail by caste Choliyani, Through M/s.Saima & Sajida Parveen, Advocate(s).

Complainant:               Mst.Janul Khatoon Choliyani in person.

The State:                      Through Mr. Aitbar Ali Bullo, D.P.G,

Date of hearing:           08.07.2024

Date of decision:           08.07.2024

JUDGMENT

IRSHAD ALI SHAH, J;- Facts, in brief, necessary for the disposal of instant appeals are that the appellants with the rest of the culprits, allegedly after having formed an unlawful assembly and in the prosecution of its common object, murdered Abdul Waheed by causing him fire shot injuries, for which the present case was registered. At trial, the appellants did not plead guilty to the charge, and the prosecution to prove the same examined seven witnesses and then closed its side. The appellants in their statements recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence; they did not examine anyone in their defence or themselves on oath. On completion of the trial, the appellants were convicted u/s. 302(b) PPC and sentenced to pay “Diyat” to the legal heirs of the deceased, by learned 1^st Additional Sessions Judge, Kandhkot, vide judgment dated 07.02.2023, which they have impugned before this Court by preferring two separate appeals.

2.         It is contended by learned counsel for the appellants that the appellants are innocent and have been involved in this case falsely by the police; it was the case of no evidence yet the learned trial Court has convicted them under section 302(b) PPC and sentenced to pay “Diyat” by way of impugned judgment, which being illegal to be set aside by this Court with acquittal of the appellants by extending them benefit of doubt.

3.         Learned D.P.G for the State who is assisted by the complainant was fair enough to admit that the appellants have been sentenced improperly, therefore, the matter be remanded for re-writing of the judgment, as per law.

4.         Heard arguments and perused the record.

5.         Section 302(b) PPC entails the punishment of death or imprisonment for life coupled with compensation in terms of Section 544-A Cr.PC. None of the sentences prescribed by the law has been awarded to the appellants. In that situation, directing the appellants to pay “Diyat” to the legal heirs of the deceased under the deception that they have compounded the offence with them outside of the Court was unjustified and illegal. Consequently, the impugned judgment is set aside to be re-written by the Judge of competent jurisdiction other than the one who has passed the impugned judgment, to be nominated by the Sessions Judge concerned.

6.         The appellants at trial were enjoying the concession of bail, they to enjoy the same concession, subject to their furnishing fresh surety in the sum of Rs.100,000/- (One Lac) each and P.R bond in the like amount to the satisfaction of learned trial Court.

7.         Both the criminal appeals are disposed of accordingly.

               JUDGE

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