IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 68 of 2016

Before;-

Mr.Justice Muhammad Iqbal Mahar

Mr.Justice Irshad Ali Shah

Appellant : Ravi Kumar S/o Anil Kumar, through

Mr. Abdul Baqi Jan Kakar, Advocate

Respondent : The State, through Mr. Ubdedullah Malano,

SPP ANF

Date of hearing : 14.03.2019

Date of decision: 14.03.2019

JUDGMENT

IRSHAD ALI SHAH, J:- The facts in brief necessary for disposal of instant appeal are that on arrest from appellant was secured 188 Kg of charas by police party of ANF Sukkur, led by Inspector Ghulam Abbas, for that he was booked and reported upon.

2. At trial, the appellant did not plead guilty to the charge and prosecution to prove it examined complainant and his witnesses and then closed the side.

3. The appellant during course of his examination under Section 342 Cr.P.C denied the prosecution allegation by pleading innocence.

4. On evaluation of the evidence so produced by the prosecution, the appellant for an offence punishable under Section 9(c) of the CNS Act was convicted and sentenced to undergo imprisonment for life and to pay fine of rupees one lac and in default whereof to undergo simple imprisonment for one year vide judgment dated 16.03.2016.

5. The appellant being aggrieved of above said judgment has impugned the same before this Court by way of instant appeal.

6. It is contended by learned counsel for the appellant that neither the statement of the appellant on oath has been recorded on the date which was prescribed for doing so nor he has been provided fair chance to examine Shirimiti Pooja Kumari and Sarla in his defence by learned trial Court. By contending so, he sought for remand of the matter for re-writing of the judgment with a chance to the appellant to examine him on oath and his witnesses in his defence.

7. Learned SPP for the ANF has opposed to remand of the matter by contending that the appellant has already availed his examination on oath and has then closed his side without examining his witnesses in his defence.

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

9. As per record, the statement of the appellant on oath has been recorded on 22.02.2016 while it was signed by learned trial Judge on 23.02.2016. Significantly, no diary is maintained by learned trial Court either of above said date of hearing. It is stated by learned trial Judge in impugned judgment that the appellant closed his side without examining Shirimiti Pooja Kumari and Sarla in his defence. No such statement in writing is available on record. In that situation, it would be safe to conclude that the appellant has been prejudiced in his defence seriously.

10. In view of the above, the impugned judgment is set aside with direction to learned trial Court to re-examine the appellant on oath and to provide him fair chance to examine Shirimiti Pooja Kumari and Sarla in his defence and then to re-write judgment after providing chance of hearing to all the concerned.

11. The instant appeal is disposed of in the above terms.

Judge

Judge