IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S-03 of 2021

Appellant: Ghulam Mustafa son of Gul Muhammad bycaste Marri. (Now confined in Central Prison Sukkur).

Through Mr. Achar Khan Gaboel, advocate.

The State: Through Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General, Sindh.

Date of hearing: 13-02-2023

Date of judgment: 13-02-2023.

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits after having formed an unlawful assembly in prosecution of their common object, committed murder of Manzoor Ali and Suleman by causing them fire shot injuries and went away by misappropriating their property and making aerial firing to create harassment, for that they were booked and reported upon. On conclusion of trial, the appellant was convicted for the said offence without specifying the Penal section and sentenced to undergo 25 years of Imprisonment and to pay fine of Rs. 100,000/- (One Lac) to the legal heirs of both deceased with benefit of section 382(b) Cr.P.C, by learned Additional Sessions Judge, Moro, vide judgment dated 11-01-2021, which is impugned by the appellant before this court by preferring the instant appeal.

2. At the very outset, it is pointed out by learned counsel for the appellant and learned Additional P.G for the state that after framing of charge, the evidence of complainant Ayaz Ali, PWs Ghulam Mustafa and Muhammad Waris has been recorded in absence of counsel for the appellant, which is contrary to mandate prescribed by Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars, which call for recording of evidence in such like case in presence of counsel for the appellant as it was entailing the capital punishment. By pointing out so, they suggested for remand of the case for re-examination of complainant and his above said witnesses in accordance with law. In support of their suggestion, they relied upon case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112).

3. Heard arguments and perused the record.

4. The omission, which is pointed out by learned counsel for the parties take support from the record, same being incurable in terms of Section 537 Cr.P.C has occasioned in failure of justice, consequently, the impugned judgment is set aside with direction to learned trial Court to recall and re-examine the complainant and his above named witnesses afresh and in accordance with law and then to make disposal of the very case without being influenced by earlier findings, preferably within 03 months after receipt of copy of this judgment.

5. Instant Crl. Appeal is disposed of accordingly.

JUDGE

Nasim/P.A