JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal No.S-70 of 2019.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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For hearing of main case.

17.02.2022

                        Mr. Ashfaque Hussain Abro, Advocate for the appellants.

                        Mr. Javed Ahmed Soomro, Advocate for the complainant.

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

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IRSHAD ALI SHAH - J;- The facts in brief necessary for disposal of instant criminal appeal are that the appellants allegedly with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murder of Sohrab, by causing him fire shot injuries and then went away by causing fire shot injuries to complainant Muhammad Hassan, PWs Ahmed Nawaz, Saddam Hussain, Ali Hassan and Javed Hussain, with intention to commit their murder too, for that the present case was registered.     

2.                     On conclusion of trial, the appellants only for committing murder of Sohrab and causing injury to PW Saddam Hussain with intention to commit his murder were convicted u/s.302(b), 324, 337-F(iii) and 148 PPC and sentenced to various terms of imprisonment with fine/compensation, by learned 1^st Additional Sessions Judge/MCTC, Qamber, vide judgment dated 07.09.2019, which is impugned by the appellants before this Court by preferring the instant criminal appeal.

3.                     It is pointed out by learned counsel for the appellants that no charge has been framed against the appellants with regard to injuries sustained by complainant Muhammad Hassan, PWs Ahmed Nawaz, Saddam Hussain, Ali Hassan and Javed Hussain. No medical certificate with regard to the injury sustained by the complainant has been produced on record. PW Ahmed Nawaz has not been examined by the prosecution. The evidence of PWs Saddam Hussain and Javed Ali has been recorded in absence of the case property. The point for determination speaks of death of deceased Sohrab and injury to PW Saddam Hussain only. No finding of acquittal or conviction with regard to injuries sustained by complainant Muhammad Hassan and PWs Ahmed Nawaz, Ali Hassan and Javed Hussain has been arrived at. The conviction u/s.337-F(iii) PPC with regard to injury sustained by PW Saddam Hussain has been awarded to the appellants without framing formal charge for the said penal section against them and benefit of Section 382-B Cr.PC has been denied to the appellants, without assigning any reason by learned trial Court. By pointing out the above omission, he sought for remand of the case to learned trial Court for denovo trial of the appellants for the reason that such omissions have occasioned in failure of justice.

4.                     Learned Addl.P.G for the State and learned counsel for the complainant were fair enough to consent for the above said propositions.

5.                     Obviously, the omissions pointed above have not only prejudiced the appellants but the State too; which are not curable u/s.537 Cr.PC. Consequently,  the impugned judgment is set aside with direction to learned trial Court to frame the charge against the appellants afresh by considering the entire material brought on record by the prosecution and then to proceed with the case in accordance with law.

6.                     Appellants Haji Nawab and Saleem alias Sadoro were enjoying the concession of bail at trial, they to enjoy the same concession subject to their furnishing fresh surety in sum of Rs.200,000/- each and P.R bond in the like amount to the satisfaction of learned trial Court.

7.                     The instant criminal appeal is disposed of accordingly.

                         JUDGE