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