IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 243 of 2020

Appellant: Muhammad Amin through Ms. Sara Malkani advocate

The State: Through Mr. Siraj Ali Khan Additional Prosecutor General Sindh

Date of hearing: 19.09.2022

Date of judgment: 19.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant has committed rape with his own daughters namely Mst. Sajida and Mst. Amina after keeping them under fear of death, for that he was booked and reported upon. After due trial, he was found guilty for the above said offence and was convicted and sentenced to various terms of imprisonments spreading over 25 years imprisonment and fine; all the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C by learned Additional Sessions Judge Sujawal vide judgment dated 22.12.2016, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. On perusal of record, it transpired that at trial examination in chief of P.W/victim Mst. Amina and P.W/I.O SIP Muhammad Ayub has been recorded in absence of counsel for the appellant, it was contrary to the mandate contained by Circular 6 of Chapter VI of Federal Capital and Sindh Civil Court Circulars, which prescribes trial of such like cases in presence of counsel for the accused.

3. In the 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 re-examine P.W/ victim Mst. Amina and P.W/I.O SIP Muhammad Ayub afresh in presence of learned counsel for the appellant and then to proceed with the case 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 under intimation to this Court.

7. Instant jail appeal is disposed of accordingly.

JUDGE

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