IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 242 of 2019

Criminal Appeal No. 247 of 2019

Appellants: Muhammad Nasir and Ramzan @ Baboo Katchi through Mr. Raj Ali Wahid Kunwar advocate

The State: Through Mr. Khadim Hussain Additional General Sindh

Complainant: Muhammad Ali through Mr. Munir Ahmed advocate

Date of hearing: 30.08.2022

Date of judgment: 30.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, committed murder of Gul Hassan by causing him fire shot injuries, for that they were booked and reported upon. After due trial and on remand of the matter, the appellants were convicted once again under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.500,000/- each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned Ist Additional Sessions Judge, Karachi East vide judgment dated 16.04.2019, which is impugned by the appellants before this Court by preferring two separate appeals.

2. On perusal, it transpired that after framing of amended charge, no plea of appellant Ramzan alias Baboo was recorded, it is lying blank, which is contrary to fair trial which is guaranteed under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 and evidence of P.Ws Dr. Pardeep Kumar and Ghulam Hussain has been recorded against the appellants in absence of their counsel, which is contrary to the mandate contained by Circular 6 of Chapter VI of Federal Capital and Sindh Civil Court Circulars for the reason that it prescribes trial of such like case in presence of counsel for the accused.

3. In case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112), it has been held by Division Bench of this Court that;

“In the present case, trial court did not perform its functions diligently and recorded examination-in-chief of two witnesses named above in absence of the defence counsel by ignoring Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, Section 340(1) Cr.P.C and Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars. As such, the appellant was prejudiced in the trial and defence…”

4. Learned counsel for the parties when were confronted with the above were fair enough to say that such omissions could only be cured on remand of the case.

5. In view of above, the impugned judgment is set aside with direction to learned trial Court to conduct denovo trial of the appellant right from the stage of charge and pleas by recording fresh evidence, in accordance with law.

6. Since the case is old one, it is expected that it would be proceeded and disposed of by learned trial Court expeditiously preferably within three months after receipt of copy of this judgment.

7. Both the appeals are disposed of in above terms.

JUDGE