IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 221 of 2020
Criminal Appeal No. 170 of 2020
Appellants: Jaan
Raheem @ Haroon @ Lal and Akhtar Wahid through Mr. Jamil Ahmed Shah advocate
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh
Date of hearing: 10.10.2022
Date of judgment: 10.10.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged that the appellants and co-accused Aurangzeb, who died at trial,
during course of robbery committed murder of Saeed Khan, by causing him fire
shot injuries, for that they were booked and reported upon. On conclusion of
trial, they were convicted under Section 397 PPC and sentenced to undergo R.I
for 07 years with fine of Rs.50,000/- each and in default whereof to undergo
simple imprisonment for 03 months; they were further convicted under section
302(b) PPC r/w 34 PPC and sentenced to undergo life imprisonment and to pay compensation
of Rs.300,000/- to the legal heirs of the deceased and in default whereof to
undergo simple imprisonment for 06 months; all the sentences were ordered to
run concurrently with benefit of section 382-B Cr.P.C by learned 1st
Additional Sessions Judge/ MCTC Karachi South vide judgment dated 04.02.2020
which is impugned by the appellants before this Court by preferring two
separate appeals.
2. At the very outset, it is pointed by
learned counsel for the appellants and the learned Addl. P.G for the state that
evidence of complainant Amir has been recorded in absence of counsel for the
appellant Jaan Raheem, thereby he has been prejudiced in his defence seriously.
By pointing out so, they suggested for remand of the case for its fresh
disposal after recording evidence of complainant Amir as is prescribed by law.
In support of their contentions, they relied upon case of Bashir Ahmed vs. The State (SBLR
2021 Sindh 112), wherein, 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…”
3. The suggestion so advanced by learned
counsel for the parties takes support from the record, therefore, the impugned
judgment is set aside with direction to learned trial Court to recall and
re-examine complainant Amir as is prescribed by law and then to dispose of the
very case afresh in accordance with law, preferably within 03 months after
receipt of copy of this judgment.
4. Since appellant Akhtar Wahid was enjoying
the concession of bail at trial, he may enjoy the same concession subject to
his furnishing fresh surety in the sum of Rs.200,000/- (Rupees Two Lacs Only)
and P.R bond in the like amount to the satisfaction of learned trial
Court.
5. Instant appeals are disposed of
accordingly.
JUDGE