IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Crl. Jail Appeal No. D- 09 of 2021.

Crl. Confirmation Case No. D- 10 of 2021.

Present:

Mr. Justice Muhammad Saleem Jessar.

Mr. Justice Jawad Akbar Sarwana.

Abdul Rehman Kamboh. …………………...Appellant.

Versus

The State. …………...…….Respondent.

Mr. Asif Ali Abdul Razzak Soomro, Advocate for appellant.

Mr. Muhammad Bachal Kariro, Advocate for complainant.

Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing: 12.03.2024.

Date of judgment: 12.03.2024.

JUDGMENT

Muhammad Saleem Jessar, J: This common judgment would dispose of the above captioned Criminal Appeal and Criminal Confirmation Reference/ case.

2. Through Crl. Appeal No. D- 09 of 2021 appellant Abdul Rehman Kamboh has questioned the judgment dated 27.02.2021 passed by learned Additional Sessions Judge-I/ Model Criminal Trial Court/ Gender Based Violence Court, Kamber, in Sessions case No. 38 of 2021, re; State v. Abdul Rehman, arisen out Crime No. 145 of 2020 of Police Station A-Section Shahdadkot, whereby the appellant was convicted and sentenced as under:

(i) For offence under Section 342 P.P.C with fine of Rs.3000/-, in case of non-payment thereof to undergo S.I for two months.

(ii) For offence punishable under Section 376 (3) P.P.C. to be hanged by the neck till he is dead subject to confirmation by the High Court, and to pay fine of Rs.20,00,000/- and in case of failure to undergo S.I for ten years.

(iii) To compensate the victim girl Um-e-Fiza to tune of Rs.30,00,000/- in terms of Section 544-A Cr.P.C and incase of default thereof to undergo S.I for six months and compensation so awarded will also be recovered from him as arrears of land revenue as envisaged under Section 544-A (2) Cr.P.C.

3. Whereas Crl. Confirmation Case No. D- 10 of 2021 has been made by the learned trial Court for confirmation of death-sentence.

4. The facts of the prosecution case have been mentioned in the impugned judgment in para 2, which are reproduced hereunder:

“Succinctly case of prosecution as depicted from F.I.R captioned above is that on 09.11.2020 complainant Ghulam Farooque Kariro lodged F.I.R at P.S A-Section Shahdadkot at 0020 hours (12.00 a.m.) stating therein that on that day his daughter Um-e-Fiza was up-set and while crying disclosed him in the presence of his sons namely Arslan and Irfan that on Friday dated 06.11.2020 at sunset time (06-30 p.m), she went in the house of neighborer Abdul Rehman Kamboh in order to take bottle of water, where Abdul Rehman Kamboh being alone closed the door and subject her to rape forcibly in a room of his house.”

5. Learned counsel for the appellant at very outset drew our attention towards depositions of the complainant Ghulam Farooq (Ex.4), PWs Arslan (Ex.8) and PW Irfan (Ex.9) and contended that these material witnesses have not supported the case of prosecution at all. Learned counsel further referred to Deposition (Ex.4) of star witnesses i.e. victim of case namely, Um-e-Fiza and submitted that though the victim had supported the case of prosecution in her examination-in-chief; however, at the time of cross-examination she diverted from her earlier stance, when the “Presiding Officer of the trial Court” put a note to the effect that “It is helpful to observe here that on 11.2.2021 examination-in-chief of victim girl Um-e-Fiza was recorded at Ex.4, and at that time she was fully comfortable and relaxed and cross-examination was reserved as prayed for by the learned defence counsel and on next date viz. 18.1.2021 victim girls Um-e-Fiza was not produced by her father and she has been produced but surprisingly while responding to questions put in cross-examination, it has been observed that she has been pressurized by her father and brothers not to depose agaisnt the present accused because complainant and witnesses have already been won-over by the present accused on account of private settlement between the parties and she further replied in evasive and vague manner and she seems to be uncomfortable.”

6. Learned counsel for appellant further contended that, above observations [putting of note] by the trial Judge reveal state of his mind that he was having it in mind to convict the appellant, hence per learned counsel the impugned judgment in view of above, cannot be said to be impartial. As such, learned submits that it would be appropriate and in the larger interest of justice that the case may be remanded to trial Court for re-examination of the victim girl; providing opportunity of cross-examination to counsel for appellant and recording his fresh statement under Section 342 Cr.P.C and thereafter to re-write the judgment.

7. On the other hand learned Addl. Prosecutor General and learned Advocate for complainant while conceding to the contention of learned Counsel for the appellant, does not support the impugned judgment passed by trial Court and consented for remand of the case.

8. We have heard the learned Counsel for the parties and have perused the record carefully. The contentions so raised by learned counsel for appellant are borne out from the record. Accordingly, in view of above and no objection extended by learned Advocate for complainant as well as learned Addl. P.G., this appeal stands allowed; the conviction and sentences awarded through impugned judgment dated 27.02.2021 are set aside and case is remanded to the trial Court for de-novo trial and decision afresh in accordance with law after recording re-examination of the victim girl [Um-e-Fiza]; providing opportunity of cross-examination to counsel for appellant and recording his fresh statement in terms of Section 342 Cr.P.C. This exercise be carried out within a period of preferably two months. The appellant should be termed and treated as under trial prisoner.

9. The criminal jail appeal stands disposed of in above terms, whereas criminal confirmation case/ reference is answered in negative.

Judge

Ansari