IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 791 of 2019

Appellants: Sajjad @ Chota Mani, Shahzad and Sher Afzal through Mr. Zakir Hussain Bughio advocate

The State: Through Mr. Siraj Ali Khan Chandio, Additional General Sindh

Date of hearing: 19.09.2022

Date of judgment: 19.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants in furtherance of their common intention caused fire shot injuries to complainant Rashid and Sajid alias Babli with intention to commit their murders, eventually Sajid alias Babli died of such injuries, for that they were booked and reported upon. After due trial, they were convicted for the said offence and sentenced to various terms of imprisonments spreading over life with fine/compensation, all the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C by learned Ist Additional Sessions Judge/MCTC, Karachi South vide judgment dated 23.10.2019, which is impugned by the appellants before this Court by preferring the instant appeal.

2. On perusal of record, it transpired that on joining of the accused, one after the other, the charge was amended, lastly on 16.04.2018, no plea of any of the appellant was recorded, all those are lying blank, which is contrary to fair trial prescribed under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973. More so, evidence of P.Ws IO/SIP Haji Sanaullah and P.C Qaiser Mehboob which was already recorded was adopted, as it was such adoption after amendment of charge is contrary to the mandate contained by Section 353 Cr.P.C, which prescribes recording of evidence of witnesses in presence of accused. Even otherwise, as per mandate contained by section 231 Cr.P.C, witnesses already examined are to be recalled and re-examined on alteration/addition so made in the charge.

3. In case of S. Hifazat Hussain vs. The State (1987 P.Cr.L.J 403), it has been held by Division Bench of this Court that;

“…….where the Special Court had framed second charge in which the misappropriated amount was increased and offences were also changed except one and the statement of the prosecution witness whose statement was transferred on record of Special Court had not been re‑summoned as accused was said to have stated not to examine him, in these circumstances the provisions of section 231 of Cr.P.C. with regard to recalling of witness when charge is altered had not been properly complied with, hence conviction of the accused was set aside and the case was remanded for trial….”

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 framing charge against the appellants and recording their pleas and then to proceed with the case afresh by recording fresh evidence, in accordance with law.

6. Appellant Sher Afzal was on bail at trial, he to enjoy the same concession subject to his furnishing fresh surety in the sum of Rs.100,000/- (Rupees One Lac) and P.R bond in the like amount to the satisfaction of the learned trial Court.

7. Since the case is old one of year 2013, 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.

8. The instant appeal is disposed of accordingly.

JUDGE