IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 418 of 2019

Appellant: Jumoon through Mr. Zulfiqar Ali Langah advocate

The State: Through Mr. Khadim Hussain Additional Prosecutor General Sindh

Date of hearing: 09.09.2022

Date of judgment: 09.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant, co-accused Ishaq, Amb and Khamiso, in furtherance of their common intention, committed murder of Khan Muhammad by causing him hatchet injury on his head and then went away by insulting and causing lathi blow to complainant Ali Muhammad, for that the present case was registered. After due trial, co-accused as are named above were acquitted while the appellant was convicted u/s 302(b) PPC as tazir and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- payable to the legal heirs of the deceased as compensation and in default whereof to undergo imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned Additional Sessions Judge-I/ MCTC, Thatta vide judgment dated 21.06.2019, which is impugned by the appellant before this Court by preferring the instant jail Appeal.

2. At the very outset, it is jointly pointed out by learned counsel for the appellant and learned Additional Prosecutor General for the State that the right to make cross-examination to I.O/SIP Amjad Ali Malkani was denied to the appellant for the reason that the said I.O/SIP was found sick when was called for the purpose, which could not have been denied to the appellant legally, it is contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes right of fair trial to everyone. And more so, neither any question was put to the appellant in his statement recorded under Section 342 Cr.P.C to have his explanation nor any point for determination was framed in impugned judgment to have decision for allegation against the appellant for having committed offence punishable u/s 201, 504 and 506(2) PPC, it is contrary to the mandate contained by Section 367 Cr.P.C. By that act, not only the appellant but the state too has been denied right of fair trial, which is guaranteed U/A 10-A of the Constitution of Islamic Republic of Pakistan, 1973. By pointing so, they suggested for remand of the case.

3. The suggestion advanced by learned counsel for the parties takes support from record, therefore, the impugned judgment only to the extent of appellant is set aside with direction to learned trial Court to provide chance to the appellant to make cross examination to I.O/SIP Amjad Ali through his counsel (if he is alive) and then to proceed with the case further in accordance with law by taking the above observation into consideration.

4. The instant appeal is disposed of in above terms.

JUDGE