IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 01 of 2023
Appellant: Fareed Ahmed through Mr. Khawaja Azeem advocate
The State: Through
Mr. Abrar Ali Khichi Additional
Prosecutor General Sindh
Date of hearing: 07.06.2023
Date of judgment: 07.06.2023
J U D G M E N T
IRSHAD
ALI SHAH, J- It is alleged that the appellant with rest of the
culprits abducted Mst. Arfa Idrees
with intention to marry her or to subject her to rape, for that he was booked
and reported upon. On conclusion of trial, he was convicted under Section 376
PPC and sentenced to undergo R.I for 10 years with fine of Rs.25,000/- and in
default whereof to undergo simple imprisonment for 02 months by learned II-Additional
Sessions Judge Karachi Central, vide judgment dated 14.12.2022, which he has impugned
before this Court by preferring the instant criminal appeal.
2. At
the very outset, it is pointed out by learned counsel for the appellant that examination-in-chief
of P.W/ I.O ASI Muhammad Aslam has been recorded in
absence of counsel for the appellant, which is contrary to the mandate
contained by Circular 6 of Chapter VI of Federal Capital
and Sindh Courts Criminal Circulars, which prescribes recording of evidence in
such like case in presence of counsel for the reason that it entails capital
punishment. By such act, the appellant has been prejudiced in his defence seriously which is against the mandate contained by
Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 which guarantees
right of fair trial to everyone. By
pointing out so, he suggested for remand of the case for recording examination-in-chief
of above named witness afresh and in accordance with law, which is not opposed
by learned Addl.P.G for the State.
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 record examination-in-chief of
the above named witness afresh and in accordance with law and then to make
disposal of the case afresh preferably within three months after receipt of
copy of this judgment without being influenced by earlier findings.
5. Appellant
was on bail at trial, he to enjoy the same concession subject to his furnishing
fresh surety in sum of Rs.200,000/- and P.R bond in
the like amount to the satisfaction of learned trial Court.
6. The
instant criminal appeal is disposed of accordingly.
JUDGE