IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl.  Jail Appeal  No.S-48   of   2020

 

 

 

Appellants             :  1. Raham Dil, 2. Karim Dino, 3. Dad Muhammad,

                                all by caste Shar, through Mr. Asif Ali Abdul Razak

                                Soomro, Advocate.

 

The State            :  Through Mr. Ali Anwar Kandhro, Additional

                                Prosecutor General.

 

 

Complainant       :  Through Mr. Javed Ahmed Soomro, Advocate

(Imam Zadi)

 

 

Date of hearing      : 15-02-2024.                  

Date of Judgment  : 15-02-2024.

 

J U D G M E N T.

 

MUHAMMAD SALEEM JESSAR, J.-  Appellants Raham Dil son of Peroz, Karim Dino son of Sahib Dino alias Khawand Dino, and Dad Muhammad son of Muhammad Panjal, all by caste Shar, through instant jail appeal have challenged the judgment dated 04.09.2020, passed by the learned 1st Additional Sessions Judge/MCTC, Shikarpur, in Sessions Case No.581/2016 (Re: The State v. Raham Dil & others), arisen out of Crime No.26/2016, registered at Police Station Lakhi Ghulam Shah, District Shikarpur, for offence under Sections 302, 148 r/w section 149, PPC, whereby they were convicted for offence u/s 302(b) read with Section 149, PPC and sentenced to undergo imprisonment for life twice, each for committing murders of deceased Muhammad Khan and Gul Muhammad and to pay Rs.200,000/- each as compensation to the legal heirs of both deceased, in case of failure, they were ordered to suffer S.I. for one year more. These sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C was extended to the appellants. 

 

          2.       According to the case of prosecution, on 15.06.2016, at about 11.00 a.m., at Mungrani Diversion situated on the main road leading from Shikarpur to Sukkur, the complainant, her sons Muhammad Khan, Gul Muhammad and Muhammad Sharif and her brother-in-law Khan Muhammad, were attacked upon by accused Raham Dil, Imran, Anwar, Hasim, Karim Dino, all by caste Shar, all armed with Kalashnikovs, Rasool Bakhsh, Muhammad Salah, Dad Muhammad, Ghulam Rasool @ Ghamoon, all by caste Shar, all four armed with TT Pistols, and two unidentified accused, armed with TT Pistol, during which the accused persons committed murders of Muhammad Khan and Gul Muhammad by making fires upon them; hence, such FIR was lodged by complainant Mst. Imamzadi at PS Lakhi Ghulam Shah on 16.6.2016.  

 

          3.       Mr. Asif Ali Abdul Razak Soomro, learned Counsel for the appellants, submits that in all the 11 accused persons (nine nominated and two unidentified) were alleged to have collectively fired upon the two deceased at the time of alleged incident. He submits that co-accused Muhammad Sallah and Imran, having entered into compromise with the legal heirs of deceased, were acquitted by the trial Court in terms of compromise; whereas co-accused Bashir Ahmed, Muhammad Ismail, Rasool Bakhsh and Anwar Ali were acquitted by extending benefit of doubt to them, therefore, submits that after acceptance of compromise effected between the parties the Qisas will not be executable and only Diyat can be enforced in case the prosecution establishes its charge; hence, submits that it will be appropriate to remand the case for de novo trial. 

 

          4.       Learned Addl. P.G. as well as Mr. Javed Ahmed Soomro, learned Counsel for the complainant/legal heirs of both deceased, do not oppose the request made by learned Counsel for the appellants for remanding the case to the trial Court for de novo trial. 

          5.       Heard learned Counsel for the parties and perused the material made available on record.

          6.       Per prosecution case, it is an admitted position that the deceased died as a result of firing made by 11 accused persons mentioned in the FIR; however, on the same set of evidence co-accused Bashir Ahmed, Muhammad Ismail, Rasool Bakhsh and Anwar Ali were acquitted by extending them benefit of doubt; whereas co-accused Muhammad Sallah and Imran compounded the offence with the legal heirs of deceased persons; hence, they were acquitted in the result of such composition. So far present appellants are concerned, they have been convicted by the trial Court, though the allegation against them, per prosecution case, is that they along with 08 others had fired upon the deceased persons. It is also an admitted position on record that, the legal heirs of the deceased had entered into compromise with co-accused Muhammad Salah and Imran, who were accordingly acquitted u/s 345(6), Cr.P.C. Compromise applications filed on behalf of co-accused Anwar Ali, though was not accepted by the trial Court for certain reasons; however, he was also acquitted by extending benefit of doubt.  The evidence of complainant and PWs has not been properly examined and assessed by the learned trial Court while awarding conviction to the appellants; further, the learned Addl. P.G. as well as the learned Counsel representing the complainant/legal heirs of deceased are also agreed for remanding the case to the trial Court for de novo trial from the stage of framing of charge.      

          7.       Accordingly and in view of above discussion, instant appeal is allowed by setting aside the conviction and sentences awarded to appellants vide judgment dated 04.09.2020 and remand the case to the trial court for holding de novo trial against the appellants/accused and after completion of legal formalities decide the fate of case within a period of two months from the date of receipt of this judgment, under intimation to this Court. The appellants, who are confined in jail, shall be treated as under trial prisoners. 

          8.       Appeal stands disposed of in above terms.

 

                                                                                    JUDGE