2023 PLP 548 (MLD)

IRSHAD ALI SHAH, J.

It is case of prosecution that the appellant with rest of culprits, after having formed an unlawful assembly and in prosecution of their common object, committed murder of Dadan and then went away by causing injury to PW Asif Ali, with intention to commit his murder too, for that the present case was registered.

2. On due trial, the appellant was found guilty for the above said offence and was convicted and sentenced to various terms of imprisonment including death by learned 1st Additional Sessions Judge/ MCTC, Qamber, vide judgment dated 15.06.2021, which is impugned by the appellant before this Court by preferring the instant criminal appeal from jail. A reference is also made by learned trial Court for confirmation of death sentence to the appellant.

3. It is contended by learned counsel for the appellant that after closing side, the prosecution by way of statement filed provisional and final medical certificates issued in respect of injured PW Asif Ali, those have been taken on record by learned trial Court without putting the appellant or his counsel on notice whereof and then the impugned judgment is passed in abrupt manner, prejudicing the rights of appellant. By contending so, he sought for setting aside of the impugned judgment with direction to learned trial Court to provide right of fair trial to the appellant.

4. Learned D.P.G for the State who is assisted by the complainant was not able to controvert the above proposition.

5. We have considered the above arguments and perused the record.

6. As is apparent of the record, after examination-in-chief of the witnesses, the learned prosecutor closed its side, without waiting for the cross-examination to be made to them by learned counsel for the appellant and/or reserving his right to make re-examination to the witnesses already examined, which appears to be surprising. Subsequently, he by way of statement produced the provisional and final medical certificates with regard to injury allegedly sustained by PW Asif Ali; which were taken on record by learned trial Court without putting the appellant or his counsel on notice on such statement. It was a murder case, therefore, in all fairness, after closure of side; those documents ought to have been brought on record in terms of mandate contained by section 540, Cr.P.C. by summoning its author/Dr. Muhammad Farooq Magsi. Without having such recourse by taking those documents on record, the appellant obviously has been prejudiced in his defence seriously, which is contrary to the mandate contained by Article 10-A of Constitution of Islamic Republic of Pakistan, which prescribes the right of fair trial to every person.

7. In view of above, the impugned judgment is set aside with direction to learned trial Court to bring on record the above said documents in terms of mandate contained by section 540, Cr.P.C. by summoning its author and then to decide the case afresh, in accordance with law. The reference for confirmation of death sentence is answered in "negative".

8. It is pointed out by learned counsel for the appellant that the Presiding Officer of learned trial Court is same, therefore, the case to be assigned for its fresh disposal to some other Judge for its disposal according to law. The suggestion appears to be reasonable; therefore, the instant case is withdrawn from the file of learned 1st Additional Sessions Judge/MCTC, Qamber and is made over to the file of learned Sessions Judge, Qamber-Shahdadkot @ Qamber, to be disposed of by him or to be assigned for its disposal to any other Additional Sessions Judge of competent jurisdiction within his district, in accordance with law.

9. The instant criminal jail appeal and reference for confirmation of death sentence are disposed of accordingly. SA/S-20/Sindh Case remanded.