IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No. S-56 of 2019
Appellant : Muhkumuddin s/o Wali Muhammad Panhwar, Through Mr.Mumtaz Ali Jessar, Advocate
The State : Through Mr.Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 26-01-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The listed criminal jail appeal impugns the judgment dated 13.06.2019, delivered by learned 1st Additional Sessions Judge/MCTC, Qamber, in Sessions Case No.23/2014 (Re. St. Vs. Muhkumuddin Panhwar), outcome of FIR Crime No.294/2013, for offence punishable U/S.302, 337-A(ii), F(i) PPC registered with Police Station, Qamber City, whereby the appellant has been convicted and sentenced as under;
i). U/S.302(b) PPC to life imprisonment (R.I) as Tazir with direction to compensate the bereaved family/LRs of the deceased in the sum of Rs.400,000/- in terms of Section 544-A Cr.PC and in case of non-payment thereof to further undergo simple imprisonment of six months.
ii). U/s.337-A(i) with daman of Rs.10000/-, U/S.337-F(i) with daman of Rs.10000/-, 337-F(v) PPC with daman of Rs.30000/- total Rs.50000/- for payment to injured complainant for injuries viz. Shajjah-i-Khafifah, Jurh Ghayr Jaifah Damiyah & JGJ Hashimyah.
Sentences so awarded under this judgment will run concurrently and daman as well as compensation so awarded will be payable by the convict in lump sum.
2. Brief facts of the prosecution case are that on 11.12.2013 at 1545 hours, complainant Sultan Ahmed Panhwar got registered FIR with P.S Qamber City to the effect that on the same date, at about 1500 hours, the present appellant/accused duly armed with pistol came at Lohari Bazaar adjacent to Mukhtiarkar office Qamber and then committed murder of his brother Ghulam Nabi by causing him lathi blows on his head besides inflicting lathi injuries to him on his head and shoulder, over the matter of kids fight, for that the instant case registered against him.
3. The investigation officer on completion of usual investigation submitted final report under section 173 Cr.PC against present appellant/accused. Thereafter, learned trial Court framed the charge against him, to which he pleaded not guilty and claimed trial.
4. To prove its case, the prosecution examined in all seven witnesses i.e Complainant, Eye-witness, Corpse bearer, Author/investigation officer, Mashir, Medical officer and Tapedar, who produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed its’ side.
5. In his statement recorded in terms of Section 342 Cr.PC, the present appellant/accused denied the allegations leveled against him by pleading his innocence and prayed for justice. 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 appraisal of the evidence brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as detailed above.
7. Learned counsel for the appellant/accused while criticizing the findings recorded in the impugned judgment contended that examination-in-chief of the complainant and his witnesses was recorded in absence of learned defence counsel which has prejudiced the appellant/accused in his defence and that the offence carries capital punishment. He thus concluded that remand of the case to learned trial Court for recording evidence of said witnesses afresh in presence of learned defence counsel would meet the ends of justice.
8. Learned Addl.P.G for the State when confronted with above irregularity, has conceded 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. Heard learned counsel for the appellant/accused, learned Addl.P.G for the State and perused the material made available on record.
8. The careful perusal of case diary dated 14.06.2016 reveals that examination-in-chief of complainant Sultan Ahmed, Eye-witnesses Ahsan Ali and Corpse bearer PC Riaz Hussain was recorded by learned trial Court in absence of learned defence counsel which has prejudiced the appellant/accused in his defence and such omission obviously is nothing but a travesty of justice and mockery with law, therefore, the above illegality 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 state 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 defence counsel 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".
9. Whatsoever has been discussed above and while relying upon another case of Rajab Ali v. The State (2019 MLD-1713), I deem it appropriate to set-aside the impugned judgment with direction to learned trial Court to record evidence of the complainant and above said PWs afresh in presence of counsel for the parties and then to make disposal of case after recording statement of appellant/accused in terms of Section 342 Cr.PC afresh and providing due chance of hearing to all the concerned, without being influenced by the findings recorded in earlier judgment. The case pertains to year 2013 and is very old, therefore, learned trial Court is further directed to comply with this judgment and to proceed with the matter on day-to-day basis without granting adjournments sought by either party except the compelling circumstances and then to expedite disposal of the case within period of two months.
10. The instant criminal jail appeal stands disposed of accordingly.
JUDGE