JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal.No.D-05 of 2022

(Ali Hur @ Huroo and others 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.

30.05.2023

                        Mr. Habibullah Ghouri, Advocate for the appellant.

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

 

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IRSHAD ALI SHAH, J;- It is case of prosecution that the appellants with rest of the culprits, after having formed an unlawful assembly and in prosecution of its common object, being armed with deadly weapons, deterred the police party of P.S, Imam Bux Jamali from discharging its lawful duty as public servants when it was detailed in its duty at Police Picket Noorpur Regulator Saifullah Shakh by making an armed attack upon it, whereby SIP Muhbat Khan Rind, HC Ghulam Shabir, PC Manthar Ali, PC Sajjad Hussain and PC Muhammad Mureed lost their lives while SIP Ghulam Ali and PC Pandhi Khan sustained injuries and then went away by causing damage to above said police picket and misappropriating official arms and ammunitions and belongings of the above named deceased and injured persons, for that the present case was registered. On conclusion of trial, co-accused Zulfiqar Ali and Muhammad Sallah were acquitted while the appellants were convicted and sentenced to undergo various terms of imprisonment spreading over life, by learned Judge, Anti Terrorism Court, Larkana, vide judgment dated 12.02.2022 which they have impugned before this Court by preferring the instant criminal jail appeal.

2.         At the very outset, it was pointed out by learned counsel for the appellants that the charge was amended for five times; after recording the examination-in-chief of PWs Ashique Ali, Zahid Ali, Pandhi Khan, Akram, Ghulam Ali, Mumtaz Ali, Dr.Mushtaq and Noor Mustafa, the cross examination already made on behalf of the appellants was permitted to be adopted; it was a novel practice; besides above, the appellants were not provided any chance to re-examine their defence witnesses, which was essential after disclosure of new facts on amendment of the charge 5th time. By pointing out so, he suggested for remand of the case for fresh proceedings in accordance with law, which is not opposed by learned Addl.P.G for the State.

3.         Heard arguments and perused the record.

4.         Apparently, after final amendment of the charge, the witnesses already examined were re-called; after their examination-in-chief, the appellants as per the mandate contained by Section 231 Cr.PC were to have been allowed to re-cross examine them on amendment so made in the charge; the adoption of the cross examination already made to them on their behalf was not the requirement of law; such omissions being incurable in terms of Section 537 Cr.PC have occasioned in failure of justice in case like present one; it is also contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes right of fair trial. Consequently, the impugned judgment only to the extent of the appellants is set aside with direction to learned trial Court to proceed with the case afresh, in accordance with law and then to make its disposal preferably within three months, hereinafter, without being influenced by the earlier findings.

5.         It is further pointed out by learned counsel for the appellants that appellant Fida Hussain and Asif Ali alias Asoo were enjoying the concession of bail at trial while appellant Ali Hur alias Huroo was admitted to bail by this Court and was confined in jail for want of surety, therefore, learned trial Court to be directed to admit them to bail till disposal of their case. Such request in writing to be made by the appellants to learned trial Court, if made, then to be considered by learned trial Court in accordance with law.

6.         The Criminal Jail Appeal is disposed of accordingly.

                                                                                         JUDGE  

             JUDGE