IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Jail Appeal No.D-41  of  2007

Cr. Reference No.D-26  of  2007

 

PRESENT

Mr. Justice Khawaja Naveed Ahmed,

Mr. Justice Ghulam Dastgir A. Shahani,

 

 

Appellants    Zahid Hussain Jalbani and Nawab Panhwar              through Mr.Nisar Ahmed G Abro, advocate.

 

 

Respondent    The State through Mr. Mushtaq Ahmed

              Abbasi, Asst. Advocate General.

 

 

Date of hearing        :   23.4.2008.             Date of Judgment    :   23.4.2008.

 

J U D G M E N T.

KHAWAJA NAVEED AHMED, J.-  This appeal has been filed by appellants Zahid Hussain and Nawaz, who have been convicted vide judgment, dated 27.04.2007, by the learned II-Additional Sessions Judge, Larkana, for offence under Sections 302, 34, P.P.C, and sentenced to death, as Tazir.

2.        Since it was a jail appeal, we have appointed Mr. Nisar Ahmed G. Abro as advocate for pauper appellants to defend them on State expenses.  The accused/appellants have caused injuries to deceased Arbab Ali on 27.4.1991 at about 8.30 a.m., in the land of Ghulam Rasool Unar situated in Taluka Dokri, who had died due to following injuries:-

“External injuries:-

1.      Incised wound 12 c.m x 8 c.m x neck deep over the left side of the neck.

2.      Incised wound 12 c.m x 4 c.m over the back of lower part of the buttock region x muscle deep.

 

Internal injuries:-

Cranium:  Healthy.

Spinal Cord: Fracture of 3rd and 4th cerebral vertebrae.

Abdomen:  Healthy.

Stomach contains semi solid food. Large intestine contains gases and fasces matter.

All other organs: Healthy.”

 

 

3.        Zahid Hussain son of Allan Jalbani is the main accused, who has been charged with causing fatal injuries to the victim.  Charge was framed by the trial Court on both the accused, which is reproduced as under :-

CHARGE

     I, Ghulam Nauman Shaikh, Sessions Judge, Larkana, do hereby charge you:

 

1)              Zahid Hussain s/o Allan, Jalbani, &

2)              Nawaz Ali s/o Arbab Ali, Panhwar,

 

as follows:-

 

     That you on or about 27th day of April, 1991 at about 8.30 a.m in the land of Ghulam Rasool Unar near Watercourse situated in deh Gujhar, Taluka Dokri, in furtherance of your common intention, intentionally caused death of deceased Arbab Ali by inflicting hatchet injuries to him and thereby you committed Qatle-amd punishable u/s 302 r/w section 34, P.P.C as amended by Ordinance, 1991 and within cognizance of this Court;

     And I hereby direct that you be tried by this Court on the aforesaid charge.

     Dated this 10th day of December, 1991.

Sd/-10.12.1991.

Sessions Judge, Larkana”.

 

4.        The learned Counsel for the appellants has stated that name of appellant Nawaz is not mentioned in the F.I.R and he has been mentioned as an unknown person.  Injuries have been attributed to him also.  The learned Counsel states that injury attributed to the unknown person has been caused on the non-vital part of the body.  Both the accused in their statement under Section 342, Cr.P.C, have denied the commission of the offence. Appellant Zahid Hussain in his 342, Cr.P.C statement has denied having produced hatchet hidden by him beneath debris from his house.  The learned Counsel has further stated that the witnesses examined by the prosecution are related and interested persons.  However, appellant Zahid Hussain has not examined himself on oath.  He has not produced any witness in his defence.  Same is the position regarding appellant Nawaz.  He has denied to have produced the hatchet from the heap of brick near the bridge of Moondar Wah.  He has also not examined himself on oath and has not examined any witness in his defence.

5.        We have perused the judgment passed by the learned trial Court.  The reasons given by the learned trial Court for convicting the appellants and awarding them the sentence, are convincing.  The learned Judge has awarded death sentence to both the accused persons.

6.        Learned Asst. A. G., Mr. Mushtaq Ahmed Abbasi has supported the conviction.  However, he says that in the circumstances of the case, the capital punishment to both the appellants will be harsh.  He states that interest of justice will be served if the conviction of both the appellants is maintained and their sentence is reduced to imprisonment for life with benefit of Section 382-B, Cr.P.C. 

7.        We have gone through the evidence, so also perused the impugned judgment and we are in agreement with learned Asst. A. G., that sentence of both the appellants may be reduced to imprisonment for life.  The impugned judgment does not show any compensation imposed against the appellants in terms of Section 544-A, Cr.P.C, which the trial Court ought to have awarded to the legal heirs of deceased.  Therefore, the appellants are further ordered to pay compensation of Rs.100,000/= each, which if recovered, shall be given to the legal heirs of the deceased under Section 544-A, Cr.P.C.  In case compensation is not paid, the appellants will have to serve further simple imprisonment for one year each.  The appellants shall be given benefit of Section 382-B, Cr.P.C. 

8.        With this modification/reduction in sentence, Crl. Jail Appeal No.D-41/2007 is dismissed.  Crl. Reference No.D-26/2007 is disposed of accordingly.

 

                                                JUDGE

 

                                      JUDGE