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

Gulsher/PS