IN THE HIGH COURT
OF SINDH, AT KARACHI
Criminal Appeal No. 371
of 2020
Appellants: Shahzad
Aslam Khan @ Azna and Umar Raza through M/s Nehal Khan Lashari, Khadim Hussain
Lashari and Jamil Ahmed Rind advocates
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh
Amicus Curiae: Abdul
Hasnain advocate
Date of hearing: 16.12.2022
Date of judgment: 16.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J.- It is alleged that the appellant in
furtherance of their common intention committed murder of Rashid by
strangulating his throat, then by putting his dead body in a gunny bag, thrown
it at Jheel Park, in order to cause disappearance of evidence to save them from
legal consequences, for that they were booked and reported upon. On conclusion
of trial, they were convicted under Section 302(b) r/w 34 PPC and sentenced to
undergo imprisonment for life as Tazir and to pay compensation of Rs.100,000/-
each to the legal heirs of the deceased; they were further convicted under
section 201 r/w 34 PPC and sentenced to undergo rigorous imprisonment for 07
years and to pay fine of Rs.50,000/- each and in default whereof to undergo
simple imprisonment for 03 months each by learned V-Additional Sessions Judge,
Karachi East vide judgment dated 22.08.2020, which is impugned by the
appellants before this Court by way of instant appeal.
2. At the very outset, it is pointed out by
learned counsel for the parties and learned Amicus Curiae that after amendment
of the charge, learned trial Court has permitted adoption of evidence of P.Ws
Muhammad Akbar, Muhammad Irshad, Razaullah and Rahim Bux to the extent of their
examination-in-chief, 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 above said P.Ws, in accordance with law.
3. Heard arguments and perused the record.
4. 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. No such exercise has been undertaken
by learned trial Court. Surprisingly, evidence of certain P.Ws already recorded
was permitted to be adopted, which is against the law. 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 above named P.Ws and then to proceed with
the case afresh and make its disposal in accordance with law.
5. Needless to state that the bail
application is filed by the appellant then same to be disposed of by learned
trial Court on its own merits.
6. The instant appeal is disposed of
accordingly.
JUDGE