HIGH COURT OF SINDH AT KARACHI
Criminal
Appeal No.127 of 2010
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
Appellant: Muhammad Ejaz son of
Abdul Ghafoor
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date
of Hearing : 15.09.2017
Date of Judgment : 20.09.2017
JUDGMENT
NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Ejaz son of Abdul Ghafoor was tried by
learned Special Judge-I (CNS), Karachi in Special Case No.41 of 2007. By
judgment dated 25.01.2010, the appellant was convicted under section 9(b) of
the Control of Narcotic Substances Act, 1997 and sentenced to three years R.I.
and to pay fine of Rs.30,000/-, in case of default in payment of fine, he was
ordered to suffer two months S.I. more. Benefit of section 382-B, Cr.PC was
extended to the accused.
2. Learned
Trial Court framed the charge against the accused under Section 9(b) of Control
of Narcotic Substances Act, 1997 at Ex-2. Accused pleaded not guilty and
claimed to be tried.
3. At
the trial, the prosecution in order to substantiate the charge examined P.W-1 PC
Muhammad Nasir Khan, mashir of recovery of arrest at Ex.5 and PW-2 Mir Badshah,
Assistant Director at Ex.6. Thereafter, prosecution side was closed.
4. Statement
of accused was recorded under Section 342 Cr.P.C at Ex-8, in which the accused
denied the prosecution allegations and claimed that he has been falsely
implicated in this case with. Accused did not lead evidence in defence and also
declined to examine himself on oath in disproof of the prosecution
allegations.
5. Trial
Court after hearing the learned Counsel for the parties,
by judgment dated 25.01.2010, convicted the appellant under Section 9(b) of
Control of Narcotic Substances, 1997 and
sentenced to three years R.I. and to pay fine of Rs.30,000/-, in case of
default in payment of fine. Accused was ordered to suffer two months S.I. more.
Benefit of section 382-B, Cr.PC was extended to the accused.
6. Appellant filed instant appeal against the impugned
judgment, it was admitted to regular hearing vide orders dated 25.03.2010.
During pendency of appeal, application for suspension of sentence was preferred
on behalf of the appellant and sentence of the appellant was suspended vide
order dated 18.05.2010. Appellant was released. After release in the year 2010,
the appellant remained absent since 29.08.2013. NBWs were repeatedly issued
against the appellant and notice issued to surety. SI Ibrahim Aziz of P.S.
A.N.F. Muhammad Ali Society, Korangi Karachi has returned the NBWs unexecuted
and notice issued upon the surety in terms of Section 514, Cr.PC unserved with
the endorsement that the appellant has become absconder and has not residing at
the given address and his whereabouts are not known.
8. Learned
Deputy Prosecutor General submits that after suspension of sentence, the
appellants has absconded away and is deliberately concealing himself at some
known place.
9. We
have heard the learned D.P.G. and scanned the record. It is proved that the
appellant is concealing himself deliberately after suspension of sentence and
he has become fugitive from the law. The law is settled by now that a fugitive
from law and Courts loses some of normal rights granted by procedural as well
as substantive law. The Honourable Supreme Court in the case of IKRAMULLAH AND OTHERS V/S. THE STATE (2015
SCMR 1002) has observed as under:-
9.
A report dated 11.12.2014 has been received from the Superintendent, Central
Prison, Bannu informing that Adil Nawab appellant had escaped from the said
jail during the night between 14/15.04.2012 and he has become a fugitive from
law ever since. The law is settled by now that a fugitive from law loses his right
of audience before a Court. This appeal is, therefore, dismissed on account of
the above mentioned conduct of the appellant with a clarification that if the
appellant is recaptured by the authorities or he surrenders to custody then he
may apply before this Court seeking resurrection of this appeal.
9. In view of
the report of SIP Ibrahim Aziz of P.S. A.N.F. Muhammad Ali Society, Korangi
Karachi, it is clear that the appellant has become a fugitive from the law, as
since appellant loses some of normal rights granted by procedural as well as
substantive law. This appeal is, therefore, dismissed on account of the above
mentioned conduct of the appellant with a clarification that if the appellant
is recaptured by the authorities or he surrenders to custody then he may apply
before this Court seeking resurrection of this appeal. Since notice under
section 514, Cr.PC was issued against the surety,
the same is returned un-served. Notice be repeated against surety under section
514, Cr.PC. Separate proceedings against surety shall be continued. Adjourned to a date in office for proceedings against surety.
J U D G E
J U D G E
Gulsher/PS