IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 70 of 2020

Before;

Mr. Justice Irshad Ali Shah

Appellant: Muhammad Tariq Alam through Mr. Zulfiqar Ali Langah advocate

The State: Through Mr. Faheem Hussain Panhwar Deputy Prosecutor General Sindh

Date of hearing: 19.08.2022

Date of judgment: 19.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed rape with baby Khula Fatima, a girl aged about 11 years, who happened to be his own daughter, for that he was booked and reported upon. After due trial, he was convicted for an offence punishable under section 376(iii) PPC and was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.200,000/- and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned Xth-Additional Sessions Judge, Karachi West, which is impugned by the appellant before this Court by preferring the instant appeal.

2. On perusal, it transpired that the examination in chief of P.W/victim baby Khula Fatima was recorded in absence of learned counsel for the appellant, such exercise ought not to have been taken by learned trial Court as it was not contrary to the mandate contained by Circular 6 of Chapter VI of Federal Capital and Sindh Civil Court Circulars, for the reason that the offence alleged against the appellant was entailing the capital punishment.

3. In case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112), it has been held by Division Bench of this Court that;

“In the present case, trial court did not perform its functions diligently and recorded examination-in-chief of two witnesses named above in absence of the defence counsel by ignoring Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, Section 340(1) Cr.P.C and Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars. As such, the appellant was prejudiced in the trial and defence…”

4. Learned counsel for the parties when were confronted with the above omission, were fair enough to say that such omission could only be cured by remanding the matter to learned trial Court for rewriting of the judgment as it is against the principle of fair trial as is mandated under Article 10A of the Constitution of Islamic Republic of Pakistan 1973.

5. In view of above, the impugned judgment is set aside with direction to learned trial Court to re-examine P.W victim baby Khula Fatima in accordance with law and then to proceed with the case afresh in accordance with law.

6. Instant appeal is disposed of accordingly.

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JUDGE