HIGH COURT OF SINDH AT KARACHI
Criminal
Appeal No.459 of 2010
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
Appellant: Mehmood-ul-Hasan
alias Muna
Respondent: The
State through Mr. Mr. Abdullah Rajput, Deputy Prosecutor General Sindh.
Date of Hearing : 13.09.2017
Date of Judgment : 15.09.2017
JUDGMENT
NAIMATULLAH PHULPOTO, J.- Appellant Mehmood-ul-Hassan alias Muna was tried by
learned Special Judge-I (CNS), Karachi in Special Case No.184
of 2005. By judgment dated 25.09.2010, the appellant was convicted under
section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced to
four years R.I. and to pay fine of Rs.50,000/-, in
case of default in payment of fine, he was ordered to suffer three months S.I. more.
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 to substantiate the charge examined P.W-1 SIP Shahid Mahmood, PW-2 SI Khalil Ahmed, PW-3 SI Bashir Ahmed, PW-4 Inspector Khuda Bux. Thereafter, prosecution side was closed.
4. Statement
of accused was recorded under Section 342 Cr.P.C at Ex-9, in which the accused
denied the prosecution allegations and claimed that he has been falsely
implicated in this case with mala fide intention. 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 25.09.2010, convicted the appellant under Section 9(b) of
Control of Narcotic Substances, 1997 and sentenced
to four years R.I. and to pay fine of Rs.50,000/-, in case of default in payment of fine, he was
ordered to suffer three months S.I. more with benefit of Section 382(B) Cr.P.C.
6. Appellant filed instant appeal against the impugned judgment,
it was admitted to regular hearing vide orders dated 25.10.2010. 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 04.11.2010. Appellant was released. After release in the year 2010, the
appellant never returned back. NBWs were repeatedly
issued against the appellant. with the endorsement
that the appellant has shifted to some unknown place and his whereabouts are
not known. Notice was also issued against the surety. It is reported that
surety has expired and in this regard S.H.O. P.S. Chakiwara has recoded statements of the persons of neighbouring area.
7. SIP
Shabbir Ahmed of P.S. Chakiwara
has returned NBSs un-executed with the endorsement that the appellant has shifted to some unknown
place 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 and has
concealed himself from the proceedings pending against him. 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 Bashir Ahmed, it is clear that the appellant has become a
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. 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.
10. Since
the surety has expired and in this regard S.H.O. P.S. Chakiwara has recoded
statements of the persons of neighbouring area,
proceedings against the surety stands abated.
11. 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.
J U D G E
J U D G E
Gulsher/PS