IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Jail Appeal No. D–19 of 2021

Crl.Conf. Case No.D-15 of 2021

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellants: 1). Nazeer Ali s/o Ghulam Hyder Gadehi.

2). Muharram s/o Lal Bux @ Ali Bux Gadehi,

3). Abdul Aziz @ Aziz s/o Lal Bux Gadehi,

Through M/S Asif Ali Abdul Razzaque Soomro, Sajid Hussain Mahessar and Safdar Ali Ghouri Advocates.

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 appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of its common object committed murder of Muhammad Awais Gadehi for that they were booked and reported upon by the police. On conclusion of trial they were convicted u/s 302 r/w Section 149 PPC, without specifying the clause, consequently appellant Nazeer Ali was sentenced to death to be hanged by neck till he is dead while appellant Muharam and Abdul Aziz @Aziz were sentenced to undergo imprisonment for life; they were directed to pay compensation of Rs.200,000/= each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months; they were further convicted u/s 337 H(2) PPC r/w Section 149 PPC and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/= each and in default whereof to undergo simple imprisonment for one month; they were further convicted u/s 148 PPC r/w Section 149 PPC and sentenced to undergo rigorous imprisonement for two years and to pay fine of Rs.10,000/= each and in default whereof to under go simple imprisonment for one month; all the sentences were directed to run concurrently with benefit of section 382 (b) Cr.P.C by learned 1^st Additional Sessions Judge/MCTC, Dadu vide judgment dated 16.6.2021, which they have 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 awarded to the appellant Nazeer Ali.

2. At the very outset, it is pointed out by learned DPG for the State that in earlier round of litigation the instant case was remanded to the learned trial Court with direction to examine DWs Sojhro and Ghulam Nabi after examination of PWs Mumtaz Ali, I.O Inspector Syed Gambal Shah and Tapedar; when the prosecution was about to examine its above named witnesses its side was closed by learned trial Court under deception that it is closed by learned ADPP by filing such statement; no such statement however was filed and then appellants were asked to give up their above named DWs and then impugned judgment was passed. By pointing so, he suggested for remand of the case with direction to learned trial Court to provide fair opportunity to the prosecution to examine its above named witnesses in compliance of earlier direction of this Court, which is not opposed by learned counsel for the appellants.

3. Heard arguments perused the record.

4. Suggestion so advanced by learned APG for the State takes support from the record, such omission being incurable, in terms of Section 537 Cr.P.C 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 to everyone. Consequently the impugned judgment is set aside with direction to learned trial Court to examine the above named witnesses of the prosecution and then to make disposal of the case afresh, in accordance with law.

5. The appellants were enjoying the concession of bail at trial; they 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 the learned trial Court.

6. The death reference is answered in negative. The instant Criminal Jail Appeal is disposed of accordingly.

JUDGE