IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Jail Appeal No. D –47 of 2019

Before:

                                                Mr. Justice Irshad Ali Shah.

                                                                                    Mr. Justice Arbab Ali Hakro.

Appellant:                             Ali Roshan @ Roshan s/o Jan Muhammad by caste Dandai Chandio

Through Mr.Habibullah Ghouri, Advocate.

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

Date of hearing:                    03-05-2023.

Date of decision:                  03-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J;   It is the 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 Rais Mir by causing him fire shot injuries for that he was booked and reported upon. On conclusion of trial, he was convicted u/s 302 (b) PPC and  was sentenced to death to be hanged by neck till he is dead and to pay compensation Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months by learned 1^st Additional Sessions Judge/MCTC, Kamber, vide judgment dated 20.08.2019, 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 appellant that examination-in-chief of complainant Ranjhan, PWs Tarique and Siraj has been recorded in absence of counsel for the appellant, who on the date of their examination being ill sent an application or adjournment,  which ought to have been recorded 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 was entailing capital punishment. By pointing so, he suggested for remand of the case for recording examination-in- chief of the complainant and above named witnesses in accordance with law. In support of his suggestion,  he relied upon case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112), which is not opposed by learned APG for the State.

3.         Heard arguments and perused the record.

4.         The suggestion so advanced by learned counsel for the appellant takes support from the record, such omission 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 right of fair trial, therefore, the impugned judgment is set aside with direction to learned trial Court to recall and re-examine the complainant and his above named witnesses 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 jail appeal is disposed of accordingly.

              JUDGE

               JUDGE