IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-54 of 2018
Appellant : Muhammad Siddique @ Ladho Dotio, Through Mr.Makhdoom Syed Tahir Abbas Shah, Advocate
Complainant : Juma Khan s/o Rustam by caste Golo
Through Mr.Imdad Ali Mashori, Advocate
The State : Through Mr.Ali Anwar Kandhro, Addl.P.G
Date of hearing: 09-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The above listed criminal jail appeal is directed against the judgment dated 23.05.2018, delivered by learned 1st Additional Sessions Judge, Jacobabad, in Sessions Case No.365/2011 (Re. St. Vs. Muhammad Siddique @ Ladho Dotio), emanating from FIR bearing Crime No.89/2011, for offence punishable Under Section 302, 34 PPC registered with Police Station, City Jacobabad, whereby the appellant has been convicted and sentenced to suffer imprisonment for life with compensation of Rs.15,00,000/- to be paid to the legal heirs of deceased and in default thereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.PC.
2. Succinctly, the facts of case as depicted in FIR lodged by complainant Juma Khan s/o Rustam by caste Golo on 20.08.2011, at 1815 hours, are to the effect that he resided with his brother Sajid Ali aged about 25/26 years and one Muhammad Siddique alias Ladho Dotio also resided adjacent to his house. Two days before, an altercation took place in between his brother Sajid Ali and said Muhammad Siddique @ Ladho over the matter of standing at the door whereupon said Muhammad Siddique used to say that he will take revenge of his insult from Sajid Ali. On the eventful day, at evening, he alongwith his brother Sajid Ali and friends Abdul Razzaq and Shahid came in the city for purchasing some articles and then departed for their house. At about 09.00 P.M, when they reached adjacent to Choice Bakery, they saw three persons coming swiftly towards them who were identified to be Muhammad Siddique alias Ladho, Niaz, both sons of Salleh Muhammad Dotio, r/o village Dastagir Colony Jacobabad and third one was unknown. On coming accused Muhammad Siddique alias Ladho while raising hakal asked the complainant party to go away, as today he will take revenge of his insult. Saying so, he took out T.T pistol from his fold and made straight fires at Sajid Ali with intention to commit his murder which hit him and he fell down raising cries while rest of the accused after taking out T.T pistols from their folds aimed upon them. Due to empty handed and owing to fear, they remained silent. Thereafter, all the accused went away towards northern side with their respective pistols. They did not go behind them and then saw Sajid Ali having firearm injuries below his right side nipple, head and forehead which were bleeding and was seriously injured. After making arrangement of conveyance, the injured was immediately shifted to Civil Hospital Jacobabad where the police on information arrived and gave such letter for treatment, later-on the injured was referred to Larkana Hospital for further treatment and after getting him admitted there, the complainant came at P.S and lodged the FIR against the accused.
3. On completion of investigation, the police submitted final report under section 173 Cr.PC against present appellant/accused before the Court of concerned Judicial Magistrate. Thereafter, the formal charge was framed against present appellant/accused by learned trial Court, to which he pleaded not guilty and claimed trial.
4. In order to establish accusation against the appellant/accused, the prosecution examined in all nine witnesses i.e PW-01 Mashir HC Abdul Sattar Udho, PW-02 Medical Officer Dr.Ajeet Kumar Ahooja, PW-03 Tapedar Kamil Lashari, PW-04 Medical officer Dr.Niaz Hussain Soomro, PW-05 Complainant Juma Khan Golo, PW-06 Eye-witness Abdul Razzaq Khoso, PW-07 Mashir Jehangir Golo and PW-08 SIO/SIP Mir Baig Rind. Thereafter, learned State counsel closed its side. The present appellant/accused in his statement recorded in terms of Section 342 Cr.PC denied the allegations and prayed for justice. However, he neither examined himself on oath nor led any evidence in his defence. Subsequently, PW-09 Medical Officer Dr. Syed Waqar Ahmed was examined and all the above witnesses produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. Again the present appellant/accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence and thus prayed for mercy. 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 evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced present appellant/accused vide impugned judgment, as discussed 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, eye-witness and mashir 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 contending that remand of the case to learned trial Court would be nothing but to linger on the case, therefore, the appeal filed by the appellant/accused being meritless may be dismissed.
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 careful perusal of case diaries dated 13.05.2016 and 25.05.2016 reveals that examination-in-chief of complainant Juma Khan, eye-witnesses Abdul Razzak and mashir Jehangir Buledi were recorded by learned trial Court in absence of learned defence counsel and that their cross examination appears to have been made forcibly through the accused without adjourning the matter for their cross examination through his counsel, which obviously has prejudiced the appellant/accused in his defence and such practice apparently is nothing but a travesty of justice and mockery with law, therefore, such 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 herein, 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. Resulting upon above discussion 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 2011 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 to either party except the compelling circumstances and then to expedite the disposal of the case within period of two months.
12. The instant criminal jail appeal stands disposed of accordingly.
JUDGE .