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