JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal No.D-94 of 2019.

Crl.Acquittal Appeal No.D-37 of 2019

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DATE                                       ORDER  WITH  SIGNATURE  OF  HON’BLE  JUDGE

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Before:

         Mr. Justice Irshad Ali Shah,

         Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

14.12.2021

                        Mr. Habibullah Ghouri, Advocate for the appellants.

Mr. Ahsan Ahmed Qureshi, Advocate for the complainant.

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 appellant in criminal appeal against conviction and private respondent in appeal against acquittal together with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murder of Shah Muhammad by causing him fire shot injuries, for that they were booked accordingly.

                        On due trial, appellants (Inam and Gamthar) were convicted for the said offence, while private respondents (Sardar, Peroz alias Feroz and Abdul Fattah alias Fateh Muhammad) were acquitted by learned 1^st Additional Sessions Judge/MCTC, Kandhkot, vide judgment dated 10.10.2019, which has been impugned before this Court not only by the appellants (Inam and Gamthar) against their conviction but by complainant (Muhammad Ishaq) against acquittal of the private respondents (Sardar, Peroz alias Feroz and Abdul Fattah alias Fateh Muhammad) by preferring two separate appeals, one against acquittal and other against conviction.

                        The perusal of record reveals that the evidence of complainant Muhammad Ishaq has been recorded in absence of learned counsel for private respondents ((Sardar, Peroz alias Feroz and Abdul Fattah alias Fateh Muhammad), which is contrary to the mandate contained by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes that the right of individual to be dealt with in accordance with law. No question has been put either to appellants (Inam and Gamthar) or to the private respondents ((Sardar, Peroz alias Feroz and Abdul Fattah alias Fateh Muhammad), to have their explanation with regard to report of the Chemical/Ballistic Expert and recovery of crime weapon from them, which has occasioned in failure of justice.                        

                        Learned counsel for the parties when were confronted with above omissions, consented for remand of the case for fresh trial.

                        In view of above, the impugned judgment is set-aside with direction to learned trial Court to record evidence of the complainant afresh against appellants (Inam and Gamthar) and private respondents (Sardar, Peroz alias Feroz and Abdul Fattah alias Fateh Muhammad), in presence of their counsel and then to make disposal of case after recording their statements u/s.342 Cr.PC afresh confronting them with report of Chemical/Ballistic Expert and recovery of crime weapon, if any, from them independently without being influenced by the findings which have been recorded in earlier judgment.

                        The private respondents (Sardar, Peroz alias Feroz and Abdul Fattah alias Fateh Muhammad) were enjoying the concession of bail at trial; they may enjoy the same concession, subject to their furnishing fresh surety in sum of rupees One Lac each and P.R bond in the like amount to the satisfaction of learned trial Court.

                        The instant Criminal Appeal and Criminal Acquittal Appeal are disposed of accordingly.

                       JUDGE  

JUDGE