IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 436 of 2020

Appellants: Mst. Khadija and Jamsheed Iqbal through Mr. Habib-ur-Rehman Jiskani advocate

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

Date of hearing: 05.12.2022

Date of judgment: 05.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with one more culprit abducted Mst. Rabia alias Raheema and then subjected her to rape under deception of marriage, for that the present case was registered. On conclusion of trial, co-accused Muhammad Javed was acquitted, while the appellants Mst. Khadija was convicted u/s 366-A PPC and sentenced to undergo rigorous imprisonment for 03 years and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 03 months. Appellant Jamsheed Iqbal was convicted under Section 376 PPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.500,000/- to P.W/victim Mst. Rabia alias Raheema and in default whereof to undergo simple imprisonment for 03 months. No benefit under section 382(b) Cr.P.C was awarded to any of the appellant without assigning any reason, which was mandatory in its nature by learned Xth Additional Sessions Judge, Karachi West vide judgment dated 16.09.2020 which is impugned by the appellants before this Court by preferring the instant appeal.

2. At the very outset, it is pointed out by learned counsel for the appellants and learned Addl. P.G for the state that the charge is jumble in its nature, which is not specifying each and every penal section individually as is prescribed by Section 221 Cr.P.C; appellant Mst. Khadija was convicted under Section 366-A PPC, for which she was never charged, in that way she was misled in her defence seriously. More-so evidence of P.Ws Mst. Shakira, Muhammad Ilyas, Muhammad Rasheed and Dr. Tasneem has been recorded in absence of her counsel, which was to have been recorded in presence of her counsel as is prescribed by Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars for the reason that the offence alleged against her as per charge was entailing capital punishment. By pointing out above omissions, they have suggested for remand of the case for its denovo trial only to the extent of the appellants. In support of their suggestion, they have relied upon case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112).

3. Heard arguments and perused the record.

4. The omissions which have been pointed out by learned counsel for the parties takes support from the record, which being incurable in terms of section 537 Cr.P.C have occasioned in failure of justice, therefore, the impugned judgment only to the extent of the appellants is set aside with direction to learned trial Court to conduct denovo trial right from the stage of framing charge against the appellants afresh and then to proceed with the case further and make its disposal, in accordance with law, preferably within 03 months, after receipt of copy of this judgment.

5. The appellants were enjoying concession of bail at trial, they to enjoy the same concession subject to furnishing fresh surety in the sum of Rs.50,000/- (Rupees Fifty Thousand) each and P.R bond in the like amount to the satisfaction of learned trial Court.

6. Instant appeal is disposed of accordingly.

JUDGE