JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal.No.D-04 of 2020

(Safdar @ Safoo Solangi Vs. The State)

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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.

23.05.2023

Mr. Altaf Hussain Surahio, Advocate for the appellant.

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

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ARBAB ALI HAKRO, J;- It is case of prosecution that the appellant with rest of the culprits, after having formed an unlawful assembly and in prosecution of its common object, committed murder of Bajhi by causing fire shot injuries and then went away by causing hatchet injuries to complainant Abdul Qadir and PW Akhlaque Ahmed with intention to commit their murder, for that the present case was registered. On conclusion of trial, the appellant was convicted under Section 302(b) PPC and sentenced to death as Tazir, subject to confirmation by this Court and he was also directed to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months, by learned 1^st Additional Sessions Judge/MCTC, Qamber, vide judgment dated 11.01.2020, which he has impugned before this Court by preferring the instant criminal jail appeal. A reference in terms of Section 374 Cr.PC is also made by learned trial Court for confirmation of death sentence to the appellant.

2. At the very outset, it was pointed out by learned counsel for the appellant that on 07.01.2020, when the evidence of complainant and his witnesses was to be recorded, both of the counsel engaged by the appellant or provided to him on state expenses were called absent, learned trial Court with no loss of time appointed a new counsel for the appellant to defend him on state expenses and then proceeded to record evidence of the complainant and his witnesses without providing requisite papers to his newly appointed counsel for preparation; the entire evidence was recorded in one go and then prosecution closed its side; it was followed by recording statements of appellant and co-accused Ashique alias Ashoo alias Asif Ali on the very same day and then case was adjourned to 11.01.2020 for arguments and judgment. On adjourned date, co-accused Ashique alias Ashoo alias Asif Ali was called absent, without intimation, without passing any order with regard to his absence, his case was bifurcated and then the judgment was pronounced by learned trial Court under deception that the arguments have been heard, whereby the appellant was awarded death penalty; the undue haste shown by learned trial Court was contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes right of fair trial, which apparently is denied to the appellant. By pointing out so, he suggested for remand of the case for recording evidence of the complainant and his witnesses afresh and in accordance with law to meet with ends of justice, which is not opposed by learned Addl.P.G for the State.

3. Heard arguments and perused the record.

4. The omissions pointed out by learned counsel for the appellant takes support from the record; those being incurable in terms of Section 537 Cr.PC have occasioned in failure of justice in case like present one. Consequently, the impugned judgment is set aside with direction to learned trial Court to record evidence of the complainant and his witnesses afresh by providing fair chance to the appellant to defend his case and then to make disposal of the case in accordance with law.

5. The death reference is answered in negative while Criminal Jail Appeal is disposed of accordingly.

JUDGE