IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 288 of 2020

Appellant: Muhammad Adnan through M/s Faqir Qurban Ali Soomro and Mumtaz Ahmed Soomro advocates

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

Date of hearing: 08.12.2022

Date of judgment: 08.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits in furtherance of their common intention abducted Mst. Najma alias Hina and then subjected her to rape, for that the present case was registered. On conclusion of trial, co-accused Babar Hussain and Mst. Gul Shad alias Babe were acquitted, while the appellant was convicted u/s 365-B PPC and sentenced to undergo rigorous imprisonment for life; he was further convicted under section 376 PPC and sentenced to undergo imprisonment for 15 years with fine of Rs.200,000/- payable to P.W/victim Mst. Najma alias Hina as compensation and in default whereof to undergo simple imprisonment for 06 months. No benefit under section 382(b) Cr.P.C was awarded to the appellant and no order was passed as to whether both the sentences awarded to the appellant were to run concurrently or consequently, by learned Xth-Additional Sessions Judge, Karachi West, vide judgment dated 11.03.2020, which is impugned by the appellant before this court by preferring the instant appeal.

2. At the very outset, it is pointed out by learned counsel for the appellant and learned Addl. P.G for the state that after framing of charge complainant Faisal Kamal was examined, his evidence was recorded in absence of counsel for the appellant, which was ought to have been recorded only in presence of counsel for the appellant 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 the appellant was entailing capital punishment. It was further pointed out by them that the charge was amended subsequently but complainant Faisal Kamal and P.W/victim Mst. Najma alias Hina were not re-examined, on amendment so made in the charge, their re-examination was essential in terms of Section 231 Cr.P.C on amendment and alteration so made in the charge. By pointing out so, they suggested for remand of the case for re-examination of the complainant and P.W/victim Mst. Najma alias Hina afresh in accordance with law. In support of their suggestion, they relied upon case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112).

3. Heard arguments and perused the record.

4. The omissions pointed out by learned counsel for the parties take support from the 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 appellant is set aside with direction to learned trial Court to recall and re-examine the complainant and P.W/victim Mst. Najma alias Hina in accordance with law and then to make disposal of the case afresh without being influenced by earlier findings, preferably within 03 months after receipt of copy of this judgment.

5. Instant appeal is disposed of accordingly.

JUDGE