IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Appeal No. D–33 of 2021

Crl.Conf. Case No.D-38 of 2021

Before:

                                          Mr. Justice Irshad Ali Shah.

                                                                      Mr. Justice Arbab Ali Hakro.

Appellant:                       ASI Khan s/o Bakhshal Khan by caste Junejo

                                        Through Mr. Athar Abbas Solangi, Advocate.

Widow of deceased:       Through Mr. Habibullah Ghouri, Advocate

The State:                        Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing:              26-04-2023.

Date of decision:             26-04-2023.

JUDGMENT

ARBAB ALI HAKRO, J;. The appellant who is ASI in police department committed murder of PC Sadaruddin under the allegation of Karap when he was performing election duty at Government Primary School, Butra, for that he was booked and reported upon. To prove the charge, the prosecution examined complainant SIP Noor Ahmed and his witnesses and then closed its side. The appellant in his statement recorded under Section 342 Cr.PC denied the prosecution allegation by pleading his innocence. On conclusion of trial, he was convicted u/s.302 PPC without specifying the clause and sentenced to death to be hanged by neck till he is dead and to pay compensation Rs.200,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months by learned 3^rd Additional Sessions Judge, Larkana, vide judgment dated 18.12.2021, which he has impugned before this Court by preferring the instant jail appeal. A reference in terms of Section 374 Cr.PC has also been made by learned trial Court for confirmation of death sentence.

2.       At the very outset, it is pointed out by learned counsel for the parties that examination-in-chief of complainant SIP Noor Muhammad, PW/ASI Iqbal Ahmed, Tapedar Ali Akbar and PC Ali Gohar have been recorded in absence of counsel for the appellant, which ought to have been recorded only in presence of his counsel as is mandated by Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars as the offence alleged against the appellant is entailing capital punishment. Besides this, reports of chemical examiner and ballistic expert have been produced by way of statement, which were to have been produced by I.O/SIP Sarfraz Ahmed Jagirani who was called for the purpose. By that act, the appellant has been denied right of cross examination on both these documents which has prejudiced him in his defence seriously. By pointing so, they suggested for remand of the case for recording examination in chief of the above said witnesses and producing the above documents in evidence in accordance with law. In support of their suggestion, they relied upon case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112).

3.       Heard arguments and perused the record.

4.       The suggestion so advanced by learned counsel for the parties takes support from the record, the same being incurable in terms of Section 537 Cr.PC has occasioned in failure of justice and is contrary to the mandate  contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes fair trial, therefore, the impugned judgment is set aside with direction to learned trial Court to recall and re-examine above named witnesses and produce the above said documents in evidence in accordance with law and then to make disposal of the case afresh without being influenced by earlier findings, preferably within 03 months after receipt of copy of this judgment.

5.       The death reference is answered in negative. The instant appeal is disposed of accordingly.

              JUDGE

               JUDGE