IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Jail Appeal No. D–24 of 2020

Crl.Conf: Case No.D-24 of 2020

Before:

                                                Mr. Justice Irshad Ali Shah.

                                                                                    Mr. Justice Arbab Ali Hakro.

Appellants:                          1). Ghulam Sajjad s/o Abdul Hameed Kalhoro

                                                2). Mazhar Ali s/o Amanullah Kalhoro

                                                3). Zubair @ Bandeh Ali s/o Amanullah        

Through Mr.Habibullah Ghouri, Advocate.

Complainant:                      Shahzad Ali s/o Ghulam Nabi Kalhoro Through Mr. Muhammad Aslam Jatoi, Advocate.

The State:                              Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing:                  31-05-2023.

Date of decision:                 31-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J;- It is case of prosecution that the appellants with rest of the culprits, after having formed an unlawful assembly and in prosecution of its common object, committed murder of Ghulam Mustafa by causing him fire shot injuries and then went away by making aerial firing to create harassment, for that the present case was registered. On conclusion of trial, they were convicted under Section 302(b) PPC and sentenced to death to be hanged by neck till they are dead, by learned 3^rd Additional Sessions Judge/MCTC, Larkana, vide judgment dated 19.06.2019, which they have impugned before this Court by preferring the instant criminal jail appeal. A reference in terms of Section 374 Cr.PC is also made by learned trial Court for confirmation of death sentence awarded to the appellants.

2.         At the very outset, it was pointed out by learned counsel for the appellants that after amendment of the charge; evidence of complainant Shahzad Ali, PWs Niaz Hussain and Mushtaque which was recorded already, has been copied and pasted with simple variation, which ought to have been recorded afresh on amendment/alteration so made in the charge, in terms of Section 231 Cr.PC; such omission is contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 which prescribes right of fair trial to everyone. By pointing out so, he suggested for remand of the case for fresh proceedings in accordance with law, which is not opposed by learned Addl.P.G for the State and learned counsel for the complainant.

3.         Heard arguments and perused the record.

4.         The omission pointed above by learned counsel for the parties, takes support from the record and same being incurable in terms of Section 537 Cr.PC has occasioned in failure of justice. Consequently, the impugned judgment is set aside with direction to learned trial Court to proceed with the case afresh, in accordance with law and then to make its disposal preferably within three months, hereinafter, without being influenced by earlier findings.

5.         Appellant Ghulam Sajjad was enjoying the concession of bail at trial, he to enjoy the same concession subject to his furnishing fresh surety in sum of Rs.500,000/- and P.R bond in the like amount to the satisfaction of learned trial Court.  

6.         The death reference is answered in negative.

7.         The criminal jail appeal is disposed of accordingly. 

                                                                                        JUDGE 

             JUDGE