IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 393 of 2021
Criminal Appeal No. 426 of 2021
Appellants: Shamim Ahmed, Nafees Ahmed @ Kaloo and Irshad Ahmed @ Baboo through
M/s Shahab Sarki, Zulfiqar Ali Langah and Jawaid Panhwar advocates
The State: Through
Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh
Date of hearing: 14.12.2022
Date of judgment: 14.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J.- It is the case of the prosecution that the
appellants allegedly in furtherance of their common intention caused knife
injuries to P.W Arshad Rehman
on his abdomen, with intention to commit his murder, for that they were booked
and reported upon. On conclusion of trial, they were convicted under Section 324
r/w section 34 PPC and were sentenced to undergo rigorous imprisonment for 07
years with fine of Rs.10,000/- each and in default whereof to undergo simple
imprisonment for 06 months; they were further convicted under Section 337-D PPC
and were directed to conjointly pay Arsh being 1/3rd of Diyat to P.W injured Arshad Rehman by learned Xth-Additional Sessions Judge, Karachi South vide judgment
dated 26.07.2021, 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 appellants that on 5th amendment of the
charge, learned trial Court has permitted adoption of evidence of the P.Ws who
were already examined, which is contrary to law. By pointing out so, they sought
for remand of the case with direction to learned trial Court to re-call and re-examine
the P.Ws, in accordance with law.
3. None has come forward to advance
arguments on behalf of the complainant. However, learned DPG for the state was
fair enough to state that adoption of evidence of the witnesses who were
already examined was illegal. By stating so, he consented for remand of the
case.
4. Heard arguments and perused the record.
5. As per mandate contained by section 231 Cr.P.C, the witness already examined is to be re-called and
re-examined on alteration/ addition/amendment, so made in the charge. Such exercise
has not been undertaken by learned trial Court. By that act, obviously the
appellants have been denied right of fair trial, which is guaranteed by Article
10-A of the Constitution of Islamic Republic of Pakistan, 1973. Consequently,
impugned judgment is set aside with direction to learned trial Court to re-call
and re-examine the P.Ws, who were examined before final amendment of the charge
and then to proceed with the case afresh and make its disposal in accordance
with law preferably within three months after receipt of copy of this judgment.
6. The appellants are present in Court on
bail, they may enjoy such concession by furnishing fresh surety in sum of
Rs.50,000/- (Rupee Fifty Thousand) each and P.R bond in the like amount to the
satisfaction of learned trial.
7. The instant appeals are disposed of
accordingly.
JUDGE