ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Cr. Revision Application No.S- 42 of 2023

 

Date

               Order with signature of Judge

06.11.2023.

 

1. For orders on office objection-A.

2. For hearing of main case.

 

Mr. Shahbaz Ali M. Brohi, Advocate for the appellant/convict.

Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Complainant Mst. Badshahzadi present in person.

ORDER

 

Muhammad Saleem Jessar-J:-  Through instant criminal revision application, the appellant / convict Javed alias Subhan son of Gulzar, by caste Jatoi, has assailed the judgment dated 13.2.2023 handed down by 5th Additional Sessions Judge, Shikarpur (trial court), vide Sessions Case No.337/2014 Re-The State Vs. Sajan & others.

2.         By virtue of criminal procedure code 1898, it is specifically provided that where there is an appeal, revision does not lie, therefore, the counsel for the appellant /convict was put on notice to satisfy the court about the maintainability of instant revision application. Today, when confronted with above legal objection, the counsel submits that it may be converted into a criminal appeal in terms of section 423, Cr.PC. Learned APG has no objection. Order accordingly. Office is directed to assign proper number to the case file as per institution.

3.         Complainant Mst. Badshahzadi has appeared and submits that she had entered into compromise with appellant/ convict Jawed alias Subhan Jatoi. She further submits that at the time of death, deceased Raja left Mst. Hasina as his widow, two sons, namely, Nadeem and Haqeequllah, and one daughter baby Samina, as his surviving legal heirs. However, baby Samina has died her natural death.

4.         Mr. Shahbaz Ali Brohi, learned Counsel for the appellant submits that impugned judgment is patently illegal and suffers from various illegalities and infirmities, as no application in terms of section 345(2) Cr.PC was filed either by the appellant or by the legal heirs of the decease. Therefore, by deciding the case on the ground of compromise and subsequently imposing the Diyat amount on the appellant is unjustified hence, he prays that by granting instant appeal the impugned judgment may be set aside and case may be remanded to trial court for de novo trial. He further submits that two witnesses namely complainant Mst. Badshahzadi (Ex.15) and PW Mst. Sharbat Khatoon (Ex.16) were examined by trial court on 22.12.2022 in absence of Counsel for the appellant. He next submits that offence with which the appellant has been charged carries capital punishment, which could not be tried in absence of his counsel. In support of his contention, he placed on record depositions of Mst. Badshahzadi and Mst. Sharbat Khatoon, available at Pages 31 and 33 respectively.

5.         Learned Additional Prosecutor General, Sindh, after going through the file as well as the impugned judgment, drawn attention of the court towards typed page-06 of judgment, available at page-25 of court file, which reveals that legal heirs of the deceased Raja, namely, Mst. Hasina, widow, affected her appearance before trial court and waived their right of Qisas while receiving Diyat amount in lieu of Badl-e-Suleh. However, no such application was filed either by the appellant or by the legal heirs of the deceased as required by section 345(2) and (6), Cr.PC. Hence, he submits that it will be appropriate to remand the case subject to save interest of minor legal heirs of the deceased.

6.         I have gone through the file and find that no application was filed either by the appellant or by the legal heirs of deceased in terms of section 345(2) Cr.PC, however, per impugned judgment, the then presiding officer, after having instructions from the legal heirs of the deceased, decided the fate of case vide impugned judgment.

7.         Anxiety of appellant, as submitted by his learned counsel, is that the appellant had not signed any application with regard to compromise nor had he entered into compromise as he was and is not in a position to afford the Diyat amount.

8.         Though factum of compromise has been admitted by the complainant before the court today; however, she submits rather admits that no such application was filed by them before the trial court. In the circumstances and in view of above factual as well as legal position, the argument advanced on behalf of the appellant carries weight. Accordingly, instant appeal is hereby allowed. Resultantly the impugned judgment dated 13.2.2023 handed down by 5th Additional Sessions Judge, Shikarpur(trial court), in Sessions Case No.337/2014  re-State V. Sajan and others, is hereby set aside. The case is remanded to trial court for conducting de novo trial. The appellant, who is in custody, shall be deemed to be under trial prisoner (UTP). The trial Court is directed to expedite the trial proceedings and conclude the same within six months time positively under intimation to this Court.     

             

                                                                                                                 J U D G E