IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No.D-67 of 2016.

Appellant : Vicky Kumar son of Nanak Ram

Through Mr. Imdad Ali Malik, Advocate

State : Through Mr. Aftab Ahmed Shar, A.P.G

Date of hearing : 02-05-2019

Date of decision : 02-05-2019

J U D G M E N T

IRSHAD ALI SHAH, J:- The facts in brief necessary for disposal of instant appeal are that on arrest from appellant was secured 35 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 conclusion of the trial, 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, which is impugned by the appellant before this Court by way of instant appeal.

5. It is contended by learned counsel for the appellant that the statement of appellant u/s 342 CrPC as per record was recorded on 22-02-2016 while it is signed by learned presiding officer of the trial Court on 23-02-2016 and no chance was provided to the appellant to examined his second defence witness. 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 afresh and his second witnesses in his defence.

6. Learned SPP for the ANF has opposed to remand of the matter by contending that it would not serve any purpose.

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

8. Admittedly the appellant during course of his examination u/s 342 CrPC opted to examine him on oath and two witnesses in his defence. One of his witness was examined and then he closed his side without examining his second witness in defecne and himself on oath. Subsequent it, learned trial Court realize such omission and then provided chance to the appellant to examine him on oath. By doing so impliedly the side which was closed by the appellant was reopened. Consequently the appellant was examined. There is nothing on record which may suggest that after examination of the appellant on oath, he closed his side. In that context, the contention of learned counsel for the appellant that after reopening of the side, the appellant was wanting to examine second witness in defence could not be overlooked.

9. 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 his second witness in his defence and then to re-write judgment after providing chance of hearing to all the concerned.

10. The instant Cr. appeal is disposed of in the above terms.

Judge

Judge