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 1/3^rd 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 5^th 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