IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 242 of 2019
Criminal Appeal No. 247 of 2019
Appellants: Muhammad
Nasir and Ramzan @ Baboo Katchi through Mr. Raj Ali Wahid Kunwar advocate
The State: Through
Mr. Khadim Hussain Additional General Sindh
Complainant: Muhammad
Ali through Mr. Munir Ahmed advocate
Date of hearing: 30.08.2022
Date of judgment: 30.08.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged that the appellants with rest of the culprits after having formed
an unlawful assembly and in prosecution of their common object, committed
murder of Gul Hassan by causing him fire shot injuries, for that they were
booked and reported upon. After due trial and on remand of the matter, the appellants
were convicted once again under Section 302(b) PPC and sentenced to undergo
imprisonment for life and to pay compensation of Rs.500,000/- each to the legal
heirs of the deceased and in default whereof to undergo simple imprisonment for
06 months with benefit of section 382-B Cr.P.C by learned Ist Additional
Sessions Judge, Karachi East vide judgment dated 16.04.2019, which is impugned
by the appellants before this Court by preferring two separate appeals.
2. On perusal, it transpired that after
framing of amended charge, no plea of appellant Ramzan alias Baboo was recorded,
it is lying blank, which is contrary to fair trial which is guaranteed under
Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 and evidence
of P.Ws Dr. Pardeep Kumar and Ghulam Hussain has been recorded against the
appellants in absence of their counsel, which is contrary to the mandate
contained by Circular 6 of Chapter VI of Federal Capital and Sindh Civil Court
Circulars for the reason that it prescribes trial of such like case in presence
of counsel for the accused.
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 were fair enough to say that such omissions could
only be cured on remand of the case.
5. In view of above, the impugned judgment
is set aside with direction to learned trial Court to conduct denovo trial of
the appellant right from the stage of charge and pleas by recording fresh evidence,
in accordance with law.
6. Since the case is old one, it is expected
that it would be proceeded and disposed of by learned trial Court expeditiously
preferably within three months after receipt of copy of this judgment.
7. Both the appeals are disposed of in above
terms.
JUDGE