IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-22 of 2016
Appellants : 1). Arbab Ali s/o Ghulam Hussain Shah
2). Ashraf s/o Soomar Shah,
Through Mr.Muhammad Sharif Awan, Advocate
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
Complainant Akhtar Ali Shah in person
Date of hearing: 02-03-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The listed criminal appeal is directed against the judgment dated 14.03.2016, delivered by learned Assistant Sessions Judge, K.N.Shah, in Sessions Case No.666/2014 (Re. St. Vs. Arbab Ali and another), emanating from FIR bearing Crime No.86/2014, for offence punishable U/S.324, 147, 148, 149, 337-A(i), 337-F(i), F(iii), 504 & 452 PPC registered with Police Station, K.N.Shah, whereby the appellants were convicted and sentenced as under;
“The prosecution has succeeded to prove its charge against the accused Arbab Ali s/o Ghulam Hussain Shah and Ashraf s/o Soomar Shah, who are therefore, convicted U/S.265-H(2) Cr.PC for charged offence punishable U/Ss.324, 148/149, 452 and 337-F(iii) PPC and sentenced to R.I for 05 years for section 324 PPC and also to pay fine of Rs.25000/-(twenty five thousand rupees only) each, 03 years R.I for Section 337-F(iii) PPC and to pay fine of Rs.25000/-(twenty five thousand rupees only) each as Daman payable to injured Kainat, 03 years R.I and fine of Rs.10000/- each for Section 452 PPC and 01 year R.I and fine of Rs.5000/- each for offence U/S.148 r/w Section 149 PPC, in case of failure to the payment of fine amounts, they shall suffer three (03) months more R.I for each count. All sentences run concurrently, with benefit of section 382-B Cr.PC.
2. The allegations against the accused as depicted in FIR lodged by complainant Akhtar Ali Shah are to the effect that on 26.05.2014, at about 1800 hours, the present appellants/accused accompanied with co-accused Sattar Shah and two unknown culprits, duly armed with pistols and hatchets, in prosecution of their common object after insulting and committing trespass into the house of the complainant, caused fire shot injuries to PW/injured Kainat and blows to the complainant on different parts of their bodies, for that they were booked and challaned in the present case.
3. At trial, the appellants denied the charge and the prosecution to prove its case examined in all seven witnesses i.e PW-01 complainant Akhtar Ali Shah, PW-02 Eye-witness Ali Akbar Shah, PW-03 Injured Kainat, PW-04 Dr. Arbab Ali Shah, PW-5 WMO Dr.Tabasum, PW-06 Eye-witness Shabir Shah, PW-07 SIO/ASI Ali Akbar Chandio and PW-08 Mashir Ihsan Shah, who all produced certain relevant documents in support of their statements. Thereafter learned State Counsel close the side of prosecution.
4. The case when was fixed for final arguments, learned trial Court altered/amended the charge so framed earlier against the appellants vide order dated 28.10.2015, to which they pleaded not guilty and claimed trial. Thereafter, learned counsel for the accused moved an application for re-calling PWs Ali Akbar Shah and I.O Ali Akbar Chandio for their re-cross examination which was allowed vide order dated 13.11.2015. Later-on, learned State Counsel filed an application for closing the side of prosecution on the ground that all the PWs have already been examined before the Court in above case, therefore, there is no need for further examination, which was taken on record.
5. Again the appellants/accused in their statements recorded U/S.342 Cr.PC also denied the prosecution’s allegation. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court after hearing the parties counsels and evaluation of the material brought on record convicted and sentenced the present appellants/accused, as discussed above.
7. Learned counsel for the appellants pleaded the innocence of the appellants by repeating the same grounds of his appeal adding that learned trial Court has committed illegality while recording conviction/sentence against the appellants without recording the evidence of all the witnesses afresh even after alteration/amendment of the charge which has prejudiced the appellants in their defence and such illegality could only be cured by this Court while remanding the case to learned trial Court for recording the evidence of all the PWs afresh and then to dispose of the case in accordance with law.
8. Learned D.P.G for the State when confronted with the above omission, 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.
9. Heard learned counsel for the parties and perused the material made available on record with their able assistance.
10. The meticulous perusal of material brought on record is entailing that when the case was at the verge of its final disposal, the learned trial Court altered/amended the charge against the appellants/accused vide order dated 28.10.2015, thereby inserted Section 337-A(i), F(i), F(iii) PPC that too without notice to the State Counsel. Further, no any notice was issued to learned defence counsel on an application filed by learned State Counsel closing the side of prosecution on the ground that there was no need for examination of the witnesses, examined earlier. It is held by the Honourable Apex Court that on amendment, so made as per requirement of Section 231 Cr.PC the witnesses, who were examined earlier were to have been re-called and re-examined on the amendment so made in the charge but it was not done by learned trial Court for no obvious reasons which is against the spirit of law and then rendered the impugned judgment in hasty manner which could hardly be maintained on account of above said material legal omission/error. By such act, learned trial Court has denied the right of fair trial to the appellants/accused which has prejudiced them in their defence and it is also contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Over and above this, learned counsel for the parties when were confronted with above illegality, unanimously were fair enough to concede for remand of the matter for its fresh trial in accordance with law.
11. For what has been discussed above, the impugned judgment is set-aside with direction to learned trial Court to record evidence of all the witnesses afresh, in presence of learned counsel for the parties and then to make disposal of the very case in accordance with law afresh independently, without being influenced by the findings recorded in the earlier judgment. Such exercise should be completed within three months, as the matter is very old one pertaining to year 2014.
12. However, it has been pointed out that at trial, the appellants/accused were enjoying concession of bail, therefore, they will remain on same bail (if sureties not withdrawn), subject to furnishing the fresh personal bonds, to the satisfaction of learned trial Court and if the sureties are withdrawn, then they will furnish a fresh surety within one month of this judgment.
13. The instant criminal appeal stands disposed of accordingly.
JUDGE
.