IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Jail Appeal No. 70 of 2020
Before;
Mr. Justice Irshad Ali Shah
Appellant: Muhammad
Tariq Alam through Mr. Zulfiqar
Ali Langah advocate
The State: Through
Mr. Faheem Hussain Panhwar Deputy
Prosecutor General Sindh
Date of hearing: 19.08.2022
Date of judgment: 19.08.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged that the appellant committed rape with baby Khula
Fatima, a girl aged about 11 years, who happened to be his own daughter, for
that he was booked and reported upon. After due trial, he was convicted for an
offence punishable under section 376(iii) PPC and was sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs.200,000/-
and in default whereof to undergo simple imprisonment for 06 months with
benefit of section 382-B Cr.P.C by learned Xth-Additional Sessions Judge, Karachi West, which is
impugned by the appellant before this Court by preferring the instant appeal.
2. On perusal, it transpired that the examination
in chief of P.W/victim baby Khula Fatima was recorded
in absence of learned counsel for the appellant, such exercise ought not to
have been taken by learned trial Court as it was not contrary to the mandate
contained by Circular 6 of Chapter VI of Federal Capital and Sindh Civil Court
Circulars, for the reason that the offence alleged against the appellant was entailing the capital punishment.
3. In case of Bashir Ahmed vs. The State (SBLR
2021 Sindh 112), it has been held by Division Bench of this Court that;
In the present
case, trial court did not perform its functions diligently and recorded
examination-in-chief of two witnesses named above in absence of the defence counsel by ignoring Article 10A of the Constitution
of Islamic Republic of Pakistan, 1973, Section 340(1) Cr.P.C
and Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal
Circulars. As such, the appellant was prejudiced in the trial and defence
4. Learned counsel for the parties when were
confronted with the above omission, were fair enough to say that such omission
could only be cured by remanding the matter to learned trial Court for
rewriting of the judgment as it is against the principle of fair trial as is
mandated under Article 10A of the Constitution of Islamic Republic of Pakistan
1973.
5. In view of above, the impugned judgment
is set aside with direction to learned trial Court to re-examine P.W victim
baby Khula Fatima in accordance with law and then to
proceed with the case afresh in accordance with law.
6. Instant appeal is disposed of
accordingly.
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JUDGE