IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 16 of 2021

Criminal Appeal No. 37 of 2021

Appellants: Zulfiqar and Ali Ahmed alias Loti through M/s Syed Lal Hussain Shah, Tanveer-ul-Islam, M.A. Kazi and Irshad Ali Jatoi advocates

The State: Through Ms. Rubina Qadir, Deputy Prosecutor General Sindh

Complainant: Abdul Ghani through Mr. Muhammad Islam Leghari advocate

Date of hearing: 01.12.2022

Date of judgment: 01.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, caused fire shot and lathi injuries to Hameer, Souz Ali, Vikio, Mehboob Ali alias Mohib and Irshad Ali with intention to commit their murder and then went away by insulting the complainant party, eventually Hameer died of such injuries, for that the present case was registered. On conclusion of trial, co-accused Mitho, Sharif, Nathu and Shamim Alam were acquitted while appellant Ali Ahmed alias Loti was convicted under Section 302(b) PPC as Tazir and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months; appellant Zulfiqar was convicted under Section 337-F(iii) PPC and sentenced to undergo imprisonment for 02 years as Tazir and to pay Rs.50,000/- Daman to P.W/injured Souz Ali and in default whereof to undergo simple imprisonment for 03 months; both the appellants however, were awarded benefit of section 382(b) Cr.P.C by learned I-Additional Sessions Judge/MCTC, Thatta vide judgment dated 22.12.2020, which is impugned by the appellants before this court by preferring two separate appeals.

2. At the very outset, it is pointed out by learned counsel for the parties that the charge framed against the appellants is jumble, it is not specifying each and every penal section specifically as is prescribed by Section 221 Cr.P.C; at trial the examination-in-chief of P.Ws Vikio and Mehboob Ali alias Mohib was not recorded independently, it was recorded for one witness and then was used for other witness by making its copy, which is against the principle of fair trial as is prescribed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, and more-so, evidence of P.Ws Vikio, Mohboob Ali alias Mohib, Muhammad Hassan, Mannu and I.O/SIP Zafar Ali has been recorded in absence of appellant Ali Ahmed alias Loti, which was to have been recorded in his presence as is prescribed by Section 353 Cr.P.C. By pointing out above omissions, they suggested for remand of the case for denovo trial.

3. Heard arguments and perused the record.

4. The omissions which have been pointed out by learned counsel for the parties takes support from record, same being incurable in terms of Section 537 Cr.P.C have occasioned in failure of justice, consequently, the impugned judgment only to the extent of the appellants is set aside with direction to learned trial Court to frame the charge against them afresh and then to proceed with the case further and make its disposal in accordance with law expeditiously.

5. Appellant Zulfiqar is present in Court on bail, he may enjoy the same concession subject to furnishing fresh surety in sum of Rs.50,000/- (Rupees Fifty Thousand Only) and P.R bond in the like amount to the satisfaction of learned trial Court.

6. It is pointed out by learned counsel for appellant Ali Ahmed alias Toti that he was also on bail at trial and was in custody in some other case when impugned judgment was announced by learned trial Court, therefore, he may also be ordered to be released on bail subject to his furnishing fresh surety to the satisfaction of learned trial Court, which is opposed by learned counsel for the complainant by contending that the bail granted to him was cancelled as it was jumped by him. Be that as it may, appellant Ali Ahmed alias Loti may file his bail application for his release on bail, if it is so filed, then same to be disposed of by learned trial Court on its merits.

7. The instant appeals are disposed of accordingly.

JUDGE