1. ' The appellants Siddique and Jatoi e convicted for an offence under section 324, Q & D Ordinance read with section 34, P.P.C. By the learned IIIrd Additional Sessions Judge, Mirpur Mathelo on 27-6- 2000 in Sessions Case No, 391 of 1990 (State v. Siddique and others), whereby the trial Court convicted and sentenced both the appellants to undergo R.I. For 10 years and to pay fine of Rs,10,000 each to the heirs of the deceased and in default to suffer R.I. For three months more. Both the appellants were further convicted for an offence punishable under section 337-A, P.P.C. For two years and 337-F, P.P.C. For one year as Ta'zir. Both the appellants have challenged their convictions by way of this present appeal.
2. ' The prosecution case unfolded in the F.I.R. Was that the complainant Qabli son of Bakho by caste Chachar reported the incident at Police Station Ubauro, on 28-8-1990 at about 2300 hours, stating that they were four brothers namely Sardar Ahmed, aged about 30 Pir Bux, Nawab and including the first informant. It is further stated that the complainant and Sadique Kosh and others reside near to each other houses and they are on visiting terms. On the day of incident at about 7.00 p.m.
3. Jatoi Kosh came to the house of the complainant and asked him that his brother Sadique has called the complainant and his brother Sardar Ahmed and both complainant and his brother Sardar Ahmed went to the house of accused Sadique at about 2020 hours, where the electric bulb was switched there and accused Sadiq and Siddique were present there and accused Siddique declared that they would not spare Sardar Ahmed as he is their 'Karo' and caught hold the deceased Sardar Ahmed, accused Jatoi and Siddiq brought Lathies, on which the complainant gave the names of Allah but the accused persons asked the complainant not to go near them, else he would be murdered and due to fear complainant did not intervene and raised out cries which attracted prosecution witnesses Muhammad Paryal Abdul Rehman and Sono and it is alleged that within the sight of complainant and prosecution witnesses accused Sadiq gave throttling to deceased Sardar Ahmed with his hands and co-accused gave lathi blows to Sardar Ahmed Complainant feeling helpless, gave the names of 'Holy Qur'an' to which accused ran away leaving Sardar Ahmed on the spot. Complainant saw his brother Sardar Ahmed, had sustained lathi injuries at his both shoulders at nose and due to throttling had died. The first informant then made his prosecution witnesses to guard the dead body of deceased and went at Police Station, Ubauro and reported the incident to police and the F.I.R. Was registered under section 302 read with section 34, P.P.C. To the above effect that accused on the false allegations of Karap has done to death the deceased with common intention.
4. ' The documents viz. F.I.R., challan, statements etc. Were supplied to accused under receipt Exh. 3 in compliance of section 265(c), Cr.P.C.
5. ' A formal charge was framed against the present accused/appellants for the offence punishable under section 302/34, P.P.C. By the Court, vie Exh.4, to which accused pleaded not guilty and claimed trial vide their pleas Exhs.5 and 6.
6. ' To prove the case, prosecution has examined the following witnesses.
(1) P.W. Sono Exh.
7. 7.
(2) Medical Officer Dr. Gul Muhammad Jumani had expired and the Head Clerk of Taluka Hospital Mirpur Mathelo was examined, as well conversant with the signature and hand writing of the said Doctor as Exh. 9, and he produced postmortem report vide Exh. 9-A.
(3) Complainant Qabil was examined vide Exh. 10 and he produced F.I.R. Exh. 10-A.
(4) P.W. Abdul Rehman was examined at Exh.
8. 11.
(5) P.W. Muhammad Paryal was examined at Exh.
9. 12.
(6) Mashir Abdul Karim was examined at Exh. 13 and he produced memo. Of vardat at Exh. 13-A, inquest report 13-B, memo. Of arrest of both accused vide Exh. 13-C and memo. Of recovery of lathi vide Exh. 13-D.
(7) Investigating Officer could not be examined and was reportedly expired and the statement of S.I.P. Riaz to this effect vide Exh. 14 and he was also examined as well-conversant with signature and hand writing of Investigating Officer late A.S.I. Raja Qurban Ali.
(8) Corps bearer P.C. Hamadullah was examined at Exh.
15. He produced the receipt Exh.
10. 16.
(9) Tapedar Abdul Rauf was examined vide Exh.
18. He produced sketch of Vardat vide Exh.
11. 9.
12. ' No further evidence was led by the prosecution and the learned D.D.A. For the State closed the prosecution side, vide Exh.
13. 20.
14. ' The statements of accused persons were recorded under section 342, Cr.P.C. Vide Exh. 21 and Exh.
15. 23 and the evidence of prosecution witnesses was put to them for their explanation. Both the appellants/accused in their statements stated that the prosecution case is false and foisted by complainant as deceased was hit by male buffalo belonging to grand father of deceased at the time of separation of buffalo of accused Jatoi in the house of complainant. Accused further stated that all the prosecution witnesses are relatives of complainant and due to relationship they have falsely, testified against the accused/appellants. Appellants also denied the recovery of Lathis.
16. Accused/appellants further stated that they are innocent and in the second investigation conducted by Inspector Asghar Gondal they were declared innocent as per report of S.H.O. Police Station, Ubauro, dated 15-5-1997 which has been produced vide Exh.
22. Both the appellants/accused examined themselves on oath and also examined D.Ws. Allah Wassayo, Saddal, Din Muhammad, Haji Mir Muhammad, Rano and Muhammad Bux vide Exhs. 26 to
31. The learned Advocate for the accused/appellants sought the summoning of D.W. Inspector Asghar Gondal vide his application Exh. 32, which was dismissed as per order, dated 7-3-2000 and the defence side was closed vide statement Exh.
17. 33.
18. ' Mr. Mushtaq Hussain Shah, learned counsel for the appellant has urged that the incident has occurred on 28-8-1990 whereas the conviction and sentences awarded by the Trial Court on 27-6- 2000 for the offences punishable under section 337-A(i) to undergo R.I. For two years as Ta'zir and undergo R.I for two years as Ta'zir and under section 337-F(i) to undergo for one year as Ta'zir was not promulgated. But it was promulgated by Ordinance VII of 1980 (Criminal Law Second Amendment) Ordinance, 1990, and it was published on 5th September, 1990 and conviction awarded by the trial Court is without lawful authority.
19. ' Whereas the other Ordinance IV of 1990 Criminal Law (Amendment) Ordinance, 1990 was promulgated on 15th August, 1990.
20. ' It is contended by the learned counsel that actual murder was caused by strangulation, which is attributed to absconder accused Siddique and present appellants have only caused, as alleged, lathi blows to deceased Sardar Ahmed and present appellants are liable for causing injuries 1, 2 and 3 and are liable for lessor offence punishable under section 324, P.P.C. As the trial Court has not awarded the sentence under capital charge under section 302, P.P.C. As it was not proved against the appellants. It is further argued that the trial Court has not extended the benefit under section 382-B, Cr.P.C. To the appellant while passing the order of conviction. The accused Siddiq was shown absconder, in the charge sheet and he was declared proclaimed offender during the proceedings of the case as per Court order, dated 6-11-1994. It is further urged that the appellants during the investigation conducted by Inspector Asghar Gondal were declared innocent as per report of S.H.O,. Of Police Station Ubauro, dated 15-5-1997, which has been produced as Exh.
22. During trial an application Exh. 32 was filed for summoning the D.W. Inspector Asghar Gondal, which was discussed as per order, dated 7-3-2000. It is further urged that during trial the appellants have examined themselves in their defence and D.Ws. Were also examined by them but the judgment does not contain any reasons for discarding , the evidence led in defence.
21. ' Mr. G.A. Shahani, learned Additional Advocate-General, Sindh, has conceded that the sections 337-A(i) and 337-F(i), P.P.C. Were not available under the law on 28-8-1990 on the day of incident and punishment awarded by the trial Court is without lawful authority and sentence under sections 337-A(i) and 337-F(i), P.P.C. Be set aside and case be remanded to the Trial Court for passing appropriate judgment in accordance with law. In respect of other pleas taken by the defence, it is stated that proper evaluation of the evidence and legal points have not been considered by the trial Court at the time of hearing and awarding the convictions to the appellants.
22. 'It is admitted position that provisions under sections 337-A(i) and 337-F(i), P.P.C. Were not available under the law at the time of incident and awarding the convictions under such provisions is without lawful authority. As the said sections were promulgated by Criminal Law (Second Amendment) Ordinance, 1990 published on 5th September, 1990 (20 Rabi-ul-Awal, 1411), whereas the F.I.R. Was recorded on 28-8-1990.
23. ' From the perusal of the charge framed on 22-8-1996 by the Trial Court against the appellant, it was framed for the offences punishable under sections 302 and 34, P.P.C. Vide Exh.
4. The same is reproduced as under:-- - ' CHARGE ' I, Naimatullah Phulpoto, Additional Sessions Judge, Mirpur Mathelo, do hereby charge you:---
(1) Siddique son of Wahid Bux Kosh,
(2) Jatoi son of Wahid Bux Kosh. Both resident of Deh Ghundi taluka Ubauro accused as follows:--- ' That you on or about 28-8-1990 at 2030 hours in your houses situated in Deh Ghundi Taluka Ubauro, alongwith absconding accused duly armed with Lathis intentionally did commit murder, of deceased Sardar Ahmed, brother of the complainant Qabil Chanchar, by means of lathi injuries and strangulation by hands, with common intentions on the instigation of absconding accused Saddique and thereby committed Qatl-i-Amd, offence punishable under sections 302 and 34 of Pakistan Penal Code, and within the cognizance of this Court.
24. ' And, I hereby direct that you be tried before this Court on the aforesaid said charge.
25. 'This the 22nd day Of August, 1996.
26. (Sd.)
27. Additional Sessions Judge, Mirpur Mathelo."
28. ' The trial Court has not evaluated the legal position as well as the evidence of the defence witness.
29. The Trial Court has also not extended the benefit under section 382-B, Cr.P.C. To the appellants while passing the order of conviction. The appellants were reportedly declared innocent by the Inspector Asghar Gondal in the investigation, whereas the Trial Court has observed that the capital charge under section 302, P.P.C. Is not proved against them. Intention to cause death or the knowledge that the death was likely to be caused has to be established. It is merely presumed by the Trial Court that the accused intended to cause death while inflicting lathi blows at the time of incident. All these grounds require reexamination.
30. ' In view of the frank opinion tendered by the learned Additional Advocate-General Sindh, the conviction and sentences awarded by the Trial Court are set aside and the case is remanded to the Trial Court. After due hearing of the appellants, the Trial Court is required to pass appropriate judgment in accordance with law. The evidence already recorded by the Trial Court will remain intact. The appellants are entitled to raise their all pleas, taken in this appeal in the lower Court.
31. ' The sentence and conviction awarded in the impugned judgment are set aside and the case is remanded to the Trial Court. The office is directed to return the R & P to the Trial Court immediately.