IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No. S-20 of 2019
Appellant : Ashique Ali s/o Mushtaq Ali Kalhoro, Through Mr. Ahmed Bux Abro, Advocate
Complainant : Shoukat Ali s/o Sikandar Ali Kalhoro
Through Mr.Habibullah G.Ghouri, Advocate
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
Date of hearing: 23-01-2023
ZULFIQAR ALI SANGI, J:- The listed criminal appeal impugns the judgment dated 10.04.2019, delivered by learned 1stAdditional Sessions Judge/Juvenile/MCTC, Kamber-Shahdadkot @ Kamber, in Sessions Case No.425-A/2009 (Re. St. Vs. Ashique Ali Kalhoro), emanating from FIR bearing Crime No.112/2009, for offence punishable U/S.302, 114 & 34 PPC registered with Police Station, Nasirabad, whereby the appellant has been convicted for an offence punishable U/S.302 (b) PPC and sentenced to suffer rigorous imprisonment for life with compensation of Rs.500,000/- to be paid to the bereaved family and in default whereof, to suffer simple imprisonment for six months more.
2. Shortly, the facts leading to disposal of instant criminal appeal are that on 30.08.2009 at 1230 hours, complainant Shoukat Ali got registered FIR with P.S Nasirabad to the effect that on the same date, at about 11.30 A.M, the present appellant/accused alongwith co-accused Mushtaque and Nadir, duly armed with deadly weapons came at his land situated in village Ganwal Kalhoro and on instigation of co-accused Mushtaque, the present appellant/accused in furtherance of his common intention committed murder of complainant’s brother Abdul Jabbar by firing at his chest, for that the instant case registered against the accused.
3. On completion of usual investigation, the police submitted final report under section 173 Cr.PC against present appellant/accused. Thereafter, the formal charge was framed against him, to which he pleaded not guilty and claimed trial.
4. In order to establish accusation against the appellant/accused, the prosecution examined in all nine witnesses, who produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. The present appellant/accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.
7. Learned defence counsel while criticizing the impugned judgment has contended that examination-in-chief of complainant and his two witnesses was recorded in absence of learned defence counsel which has prejudiced the appellant in his defence; that the case pertains to year 2009 and the offence carries capital punishment; that the remand of the case to learned trial Court for recording evidence of above said witnesses afresh in presence of his counsel would meet the ends of justice. Lastly, he submitted that if the case is remanded to learned trial Court, the appellant may also be set at liberty to enjoy the same concession of bail at trial. In support of his contentions, he relied upon cases of Riaz Magsi and others v. The State (2022 MLD-1787) and Rajab Ali v. The State (2019 MLD-1713).
8. Learned D.P.G for the State who is assisted by learned counsel for the complainant when confronted with the above omission, consented for remand of the case to learned trial Court on the ground that fair trial is a right of every individual which is guaranteed under the Constitution of Pakistan.
9. I have given due consideration to the arguments of learned counsel for the parties and have carefully perused the material made available on record.
10. The careful re-assessment of the case diary dated 10.09.2015 reflects that the proceedings of recording examination-in-chief of complainant Shoukat Ali and PWs Manzoor Ali and Ghulam Rasool was held by learned trial Judge in his Chamber that too in absence of learned defence counsel which has prejudiced the appellant in his defence and such practice obviously is mockery with law. Further, the above illegality committed by learned trial Court has also vitiated the trial which is contrary to the mandate contained by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes that the right of individual to be dealt with in accordance with law. Needless to mention here that the offence involved, is entailing capital punishment and the mandate of law describes that the cases involving capital punishment shall not be tried in absence of counsel for the accused as has been held by this Court in case of Shafique Ahmed v. The State (PLD 2006 Kar. 377) wherein it has been held that:-
"It is one of the duties of the Court of Session to see that the accused is represented by a qualified legal practitioner in the cases involving capital punishment. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded without first appointing an Advocate for the accused to defend him if he is unable to do so".
11. Consequent upon above discussion and while relying upon case of Rajab Ali v. The State (2019 MLD-1713), the impugned judgment is set-aside with direction to learned trial Court to record evidence of the complainant and above named PWs, afresh in presence of counsel for the parties and then to make disposal of case by recording statement of appellant in terms of Section 342 Cr.PC afresh after providing chance of hearing to all the concerned, without being influenced by the findings recorded in the earlier judgment.
12. However, it has been pointed out that at trial the appellant was enjoying concession of bail, therefore, the question of such bail plea of appellant, if moved, would be decided by learned trial Court.
13. The instant criminal appeal stands disposed of accordingly.