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