IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No.D-29 of 2019

Cr. Conf. Case No.D-11 of 2019

PRESENT:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Jawad Akbar Sarwana,

Appellant : 1. Ashique Ali alias Chano Soomro, 2. Ghulam Akbar

Soomro, through Mr. Habibullah G. Ghouri, Advocate.

Respondent : The State, through Mr. Ali Anwar Kandhro, Addl.

Prosecutor General.

Date of hearing : 30-01-2024.

Date of Judgment : 30-01-2024.

J U D G M E N T.

MUHAMMAD SALEEM JESSAR, J.- Appellants Ashique Ali alias Chano and Ghulam Akbar, both sons of Ali Nawaz Soomro through instant jail appeal have challenged the judgment dated 10.06.2019, passed by the learned 1^st Additional Sessions Judge (MCTC), Larkana, in Sessions Case No.65/2011 (Re: The State v. Ashique Ali alias Chano & another), arisen out of Crime No.35/2010, registered at Police Station Warisdino Machhi, District Larkana, for offence under Sections 302, 504, 148, 149, PPC, whereby they were convicted for offence u/s 302(b) read with Section 149, PPC and sentenced to death thrice, each for committing murders of deceased Muhammad Mureed, Mst. Sughra and Mst. Safia, to be hanged by neck till they are dead, subject to confirmation by this Court and to pay Rs.300,000/- each as compensation to the legal heirs of three deceased, in case of failure, such amounts were ordered to be recovered from the appellants as arrears of land revenue; they were also convicted for offence u/s 148, PPC and sentenced with SI for 03 years each and for offence u/s 504 read with Section 149, PPC and sentenced with simple imprisonment of two years each. All these sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C was extended to the appellants.

2. Mr. Habibullah G. Ghouri, learned Counsel for the appellants, before arguing the appeal on merits, has drawn attention of the Court towards page-89 of the paper book, it is the first charge framed against appellant Ashique Ali alias Chano on 09.02.2011. After framing of first charge, the examination in chief of complainant Ali Hassan, PWs Zulfiqar and Mashooque was recorded on 17.9.20213 vide Exs.7 to 9. The Counsel refers to page 97 of the paper book and submits that it was a capital charge which cannot be proceeded in absence of defence counsel; hence, at the time of recording examination in chief of complainant and PWs the Counsel for the appellant was not before the Court, even then he had proceeded to record the evidence of the PWs. We have gone through the paper book and find that contention so raised gets support from the record. He again submits that co-accused Akbar was arrested and therefore, charge was amended on 18.12.2015 and again one accused Aijaz was arrested, therefore, second time charge was amended on 11.8.2016; however, instead of recording evidence afresh, the evidence recorded earlier by the Court below was adopted without consent of the prosecution or victim family/complainant, which is illegal; hence, submits that accused has been deprived of his right of fair trial as well as audience and prays for remand of the case as de novo trial. In support of his contention, he places reliance upon an unreported judgment dated 31.5.2023 passed by Division Bench of this court and prays for grant of instant appeal with remand of the case.

3. Learned Addl. P.G., after going through the evidence as well as paper book affirms the contention and does not oppose the proposal so advanced.

4. Record reveals that initially after framing of charge against appellant Ashique Ali alias Chano on 09.02.2011, examination-in-chief of complainant Ali Hassan, PWs Zulfiqar and Mashooque was recorded on 17.9.20213 in absence of Counsel for the accused. It further appears from the record that subsequently on arrest of appellant Akbar and co-accused Aijaz, charge was amended twice on 18.12.2015 and on 11.8.2016. However, after amendment of charge on 11.8.2016 the trial Court instead of recording evidence of prosecution witnesses afresh, adopted a shortcut by permitting to adopt the evidence recorded earlier and that too without obtaining consent of the prosecution or victim family/complainant. Such procedure adopted by the learned trial Court is illegal and demonstrates a lack of diligence and a dismissive attitude towards the proceedings, creating a discrepancy that casts serious aspersions on the trial's conduct. Consequently, a miscarriage of justice has transpired in this case. It is irrefutable that fair trial is a fundamental right of the accused, serving as the sole mechanism to ascertain the veracity or falsehood of the witnesses' testimonies. The procedure employed by the trial Court is unlawful, which cannot be rectified under Section 537 Cr.P.C. It is now incumbent upon us to ascertain whether the manner in which the trial court conducted the proceedings has compromised the integrity of the trial, rendering it vitiated or otherwise. Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-

“10-A Right to fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

The above article provides that the accused shall not be denied the right to consult and be defended by a legal practitioner of his choice. Moreover, under section 340(1) Cr.PC, accused is entitled, as a matter of right, to be defended by a pleader. The said provision reads as under:-

“340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness.—(1) Any person accused of an offence before a Criminal court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.”

5. It is a fundamental right of the accused to be represented by a counsel of their choice. In cases where the offence carries the possibility of capital punishment, the law mandates that the right of accused to legal representation is safeguarded, imposing a duty on the State to cover the advocate's fees if the accused has not engaged one.

6. Accordingly and in view of above discussion, we hold that the learned trial Court has committed serious illegality while recording evidence of the PWs in absence of Counsel for the accused and further allowing the evidence recorded earlier to be adopted without consent of the prosecution and/or victim family/complainant. Such practice is a complete departure from the procedural law. Under such circumstances, we allow instant appeal by setting aside the convictions and sentences awarded to appellants vide judgment dated 10.06.2019 and remand the case to the trial court for holding de novo trial against the appellants/accused and after completion of legal formalities decide the fate of case within a period of six months from the date of receipt of this judgment, under intimation to this Court. The appellants, who are condemned prisoners, shall be treated as under trial prisoners.

7. In view of the above, confirmation case vide Reference No.D-11/2019 stands disposed of.

JUDGE

Qazi Tahir PA/*