IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 290 of 2020

Criminal Appeal No. 297 of 2020

Appellant(s): Dawood and Arsalan through M/s Muhammad Hanif Noonari and Shakeel Ahmed advocates

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 14.11.2022

Date of judgment: 14.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants during course of robbery committed murder of Waseem Sikandar by causing him fire shot injuries, for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 302 PPC r/w section 34 PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.300,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months; they were further convicted under Section 397 PPC and were sentenced to undergo R.I for 10 years and to pay fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 03 months; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned Ist-Additional Sessions Judge/MCTC, Karachi South vide judgment dated 12.03.2020, which is impugned by the appellants before this Court by preferring two separate appeals one from jail and other through counsel.

2. At the very outset, it is pointed out by learned counsel for the appellants that the charge is defective one, which indicates that the complainant was robbed at, he actually was not present at the time of incident. By such omission, the appellants have been misled in their defence. The evidence of the complainant has been recorded in absence counsel for appellant Dawood, which is contrary to Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars and evidence of I.O/SIP Muhammad Ishtiaq has not been recorded for the reason that he has retired from service and is ill which was not sufficient reason for non-examination being a material witness. By such omission, the appellants have been prejudiced in their defence seriously, which has occasioned in failure of justice and is not curable in terms of Section 537 Cr.P.C. By pointing out so, they suggested for remand of the case for denovo trial, which is not opposed by learned Addl. P.G for the State.

3. Heard arguments and perused the record.

4. The contentions so advanced by learned counsel for the parties take support from the record, consequently, the impugned judgment is set aside with direction to learned trial Court to frame the charge against the appellants afresh strictly on the basis of material collected against them by police on investigation, then to proceed with the case further and make its disposal expeditiously, preferably within 03 months, after receipt of copy of this judgment.

5. Both the appeals are disposed of accordingly.

JUDGE