JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Acquittal Appeal.No.D-03 of 2022

Crl.Revision Appln.No.D-01 of 2022

Crl.Appeal No.S-89 of 2021.

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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

For hearing of main case.

09.05.2023

Mr. Habibullah G.Ghouri, Advocate for appellant in Crl.Acquittal Appeal No.D-03/2022 and for applicant in Cr.Rev.A.No.D-01/2022.

Mr. Athar Abbas Solangi, Advocate for appellant/accused Nisar Ahmed in Crl.Appeal No.S-89/2021.

Mr. Ali Madad Arijo, Advocate for respondent/accused Ghaffar in Crl.Acquittal Appeal No.D-03/2022.

Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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ARBAB ALI HAKRO, J;- Complainant Zamir Ali lodged FIR with P.S Rasheed Waggan with regard to death of his uncle Arbab Ali at the hands of unknown culprits. On investigation, initially Siraj Ahmed was challaned to face trial; he after due trial was acquitted by learned 6^th Additional Sessions Judge, Larkana, vide judgment dated 24.01.2019; it was impugned by the complainant by preferring an acquittal appeal, in the meanwhile, accused Nisar Ahmed and Ghaffar joined the trial; they were charged for the said offence, which they denied, when the case was about to proceed further against them, the evidence already recorded against accused Siraj Ahmed at the instance of learned counsel for the complainant with no objection to learned counsel for the said accused was brought on record, having been adopted by them; thereafter, their statements under Section 342 Cr.PC were recorded whereby they denied the prosecution’s allegation against them, they did not examine anyone in their defence or themselves on oath. On conclusion of trial, co-accused Ghaffar was acquitted while accused Nisar Ahmed was convicted under Section 302(b) PPC as Tazir and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.500,000/- to legal heirs of the deceased by learned 6^th Additional Sessions Judge/MCTC, Larkana, vide judgment dated 16.12.2021, which is impugned by appellant/accused Nisar Ahmed by preferring an appeal; conversantly, a criminal revision application for enhancement of sentence to accused Nisar Ahmed and criminal acquittal appeal to set aside the acquittal of respondent/accused Ghaffar were preferred by the complainant.

2. At the very outset, it is stated by learned counsel for the parties that the evidence recorded against one accused could never be used against another accused; therefore, learned trial Court by adopting the evidence already recorded against accused Siraj Ahmed, has prejudiced not only appellant/accused Nisar Ahmed but appellant/complainant/State in its defence seriously; such omission being incurable in terms of Section 537 Cr.PC has occasioned in failure of justice. By stating so, they suggested for remand of the case for fresh trial against appellant/accused Nisar Ahmed and respondent/accused Ghaffar in accordance with law.

3. Heard arguments and perused the record.

4. It is settled by now that the evidence recorded against one accused cannot be used against other accused by way of adoption; such exercise is contrary to the mandate contained by Section 353 Cr.PC, which prescribes that evidence to be taken in presence of accused. By adopting the evidence which was already recorded, not only the appellant/accused but complainant/State have been denied right of fair trial, which is contrary to the mandate contained by Article 10-A of Constitution of Islamic Republic of Pakistan, 1973. Consequently, the impugned judgment is set aside, with direction to learned trial Court to make fresh disposal of case against accused Nisar Ahmed and Ghaffar after recording evidence against them in accordance with law; they were enjoying the concession of bail at trial and to enjoy the same concession, subject to furnishing fresh surety in sum of Rs.200,000/- each and P.R bond in the like amount to the satisfaction of learned trial Court.

5. In case of Nur Elahi Vs. Ikram-ul-Haq and State (PLD 1966 SC-708), it has been held by Apex Court that;-

“Every criminal proceeding is to be decided on the material on record of that proceeding and neither record of another case nor any finding recorded there-under should affect the decision and if the Court takes into consideration evidence recorded in other case, a finding recorded there in judgment is vitiated”.

6. The appeals against conviction and acquittal are disposed of accordingly, while Crl.Revision Application for enhancement of sentence to appellant/accused Nisar Ahmed having become infructuous is dismissed accordingly.

JUDGE