IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No. S-49 of 2019
Appellant : Qamaruddin s/o Meer Khan by caste Babar, Through Mr.Habibullah G.Ghouri, Advocate
Complainant : Pehlwan s/o Wali Muhammad Babar
Through Mr.Makhdoom Syed Tahir Abbas Shah, Advocate
The State : Through Mr.Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 26-01-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The captioned criminal jail appeal has assailed the judgment dated 08.05.2019, passed by learned 1st Additional Sessions Judge, Dadu, in Sessions Case No.25/2001 (Re. St. Vs. Qamardudin Babar), outcome of FIR Crime No.05/2001, for offence punishable U/S.302, 34 PPC registered with Police Station, K.N.Shah, whereby the appellant has been convicted for an offence punishable U/S.302 (b) PPC and sentenced to suffer rigorous imprisonment for life as Tazir with compensation of Rs.100,000/- to be paid to the legal heirs of the deceased and in default whereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.PC.
2. The concise facts leading to disposal of instant criminal jail appeal are that on 07.01.2001, at 1800 hours, complainant Pehlwan Babar got registered FIR with P.S, K.N.Shah, to the effect that on the same date, at 1645 hours, present appellant/accused accompanied with co-accused Ghulam Nabi and Mour, duly armed with deadly weapons came at common path in land of Abdul Sattar Narejo near village Tagio Babar and while abusing, the present appellant/accused in furtherance of his common intention committed murder of complainant’s son Yameen by causing him fire shot injury and then all the accused went away by making aerial firing and raising slogans, for that the instant case was registered against the accused.
3. After usual investigation, the investigation officer submitted final report under section 173 Cr.PC against present appellant/accused. Thereafter, the learned trial Court framed the charge against him, to which he pleaded not guilty and claimed trial.
4. To prove the charge against the appellant/accused, the prosecution examined in all eigh1t witnesses i.e complainant, eye-witnesses, mashir, investigation officer, corpse bearer, medical officer and Tapedar, who produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. In his statement recorded in terms of Section 342 Cr.PC, the present appellant/accused denied the allegations leveled against him by pleading his innocence and prayed for justice. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.
6. The learned trial Court on appraisal of the evidence brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as detailed above.
7. Learned counsel for the appellant/accused while criticizing the findings recorded in the impugned judgment contended that examination-in-chief of the complainant and his witnesses was recorded in absence of learned defence counsel which has prejudiced the appellant/accused in his defence and that the offence carries capital punishment. He thus concluded that remand of the case to learned trial Court for recording evidence of said witnesses afresh in presence of learned defence counsel would meet the ends of justice.
8. Learned Addl.P.G for the State when confronted with above irregularity, has conceded for remand of the case to learned trial Court on the ground that fair trial is a right of every individual which is guaranteed under the Constitution of Pakistan. However, learned counsel for the complainant objected the same and contended that the appeal may be decided on merits.
9. Heard learned counsel for the appellant/accused, learned counsel for the complainant, learned Addl.P.G for the State and perused the material made available on record.
10. The perusal of case diaries dated 16.04.2019 and 17.04.2019 reveals that examination-in-chief of complainant Pehlwan, eye-witnesses Buxial, Ghulam Muhammad, mashir Sanjar, corpse bearer HC Wazir Ahmed, SIO/Inspector Ali Akbar Panhwar and medical officer Dr.Ali Hassan Babar were recorded by learned trial Court in absence of learned defence counsel and that too on the days of boycott of learned Advocates over MCTC, declared by Pakistan Bar Council, which has prejudiced the appellant in his defence and such practice obviously is nothing but a travesty of justice and mockery with law, therefore, the above illegality has also vitiated the trial which is contrary to the mandate contained by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes that the right of individual to be dealt with in accordance with law. Needless to mention here that the offence involved, is entailing capital punishment and the mandate of law describes that the cases involving capital punishment shall not be tried in absence of counsel for the accused as has been held by this Court in case of Shafique Ahmed v. The State (PLD 2006 Kar. 377) wherein it has been held that:-
"It is one of the duties of the Court of Session to see that the accused is represented by a qualified legal practitioner in the cases involving capital punishment. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded without first appointing an Advocate for the accused to defend him if he is unable to do so".
11. Having concluded above and while relying upon another case of Rajab Ali v. The State (2019 MLD-1713), the impugned judgment is set-aside with direction to learned trial Court to record evidence of the complainant and above named PWs, afresh in presence of counsel for the parties and then to make disposal of case by recording statement of appellant U/S.342 Cr.PC afresh after providing due chance of hearing to all the concerned, without being influenced by the findings recorded in earlier judgment. The case pertains to year 2001 and is very old, therefore, learned trial Court is further directed to comply with this judgment and to proceed with the matter on day-to-day basis without granting adjournments sought by either party except the compelling circumstances and then to expedite the disposal of the case within period of two months.
12. It is pointed out that at trial the appellant/accused was enjoying concession of bail, therefore, the question of his bail plea, if moved, would be decided by learned trial Court.
13. The instant criminal jail appeal stands disposed of accordingly.
JUDGE