IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR.
Spl. Crl. Jail Appeal No. D – 35 of 2019
Before;
Mr. Justice Zafar Ahmed Rajput,
Mr. Justice Irshad
Ali Shah.
Appellant: Sikander
Ali son of Dur Muhammad bycaste
Golo.(Now confined in
Central Jail Khairpur)
Through Mr. Rukhsar Ahmed Junejo,
Advocate.
The State: Through Mr.
Aftab Ahmed Shar,
Additional P.G for the State.
Date of hearing: 21-02-2023.
Date of decision: 21-02-2023.
J U D G M E N T.
IRSHAD ALI SHAH, J;
It is the case of prosecution that the appellant
and absconding accused Mir Hassan Brohi were found in
possession/transporting 40 mounds of Poppy
straw, duly packed in 64 sacks, through their Truck, for that they were booked
and reported upon by the police party of PS Excise Kotdiji.
On conclusion of trial, the appellant was
convicted u/s 9 (C) of CNS Act, 1997 and sentenced to undergo Imprisonment for
life and to pay fine of Rs. 50,000/- and in default whereof to undergo Simple
Imprisonment for 03 months with benefit of section 382(b) Cr.P.C,
by learned 1st Additional Sessions/Special Judge (CNS) Khairpur,
vide judgment dated 26-02-2019, which is impugned by the appellant before this
court by preferring the instant appeal from jail.
2. At
the very outset, it is pointed out by learned counsel for the appellant and
learned Additional P.G for the state that examination in chief of the
complainant and his witnesses has been recorded in absence of counsel for the
appellant, which was contrary to mandate contained by Circular 6 of Chapter VI
of Federal Capital and Sindh Courts Criminal Circulars, which call for
recording of evidence in such like case in presence of counsel for the
appellant as it involves capital punishment. By pointing out so, they suggested
for remand of the case for re-examination of the complainant and his witnesses
in accordance with law. In support of their suggestion, they relied upon case
of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112).
3. Heard,
perused the record.
4. The
omission, pointed out above by learned counsel for the parties takes support
from the record, same being incurable in terms of Section 537 Cr.P.C has occasioned in failure of justice and it has also
denied right of fair trial to the appellant which is prescribed by Article 10-A
of Constitution of Republic of Pakistan, 1973; consequently, the impugned
judgment is set aside with direction to learned trial Court to re-examine the
complainant and his witnesses in accordance with law and then to make fresh disposal
of the case without being influenced by earlier findings; such exercise to be
completed preferably within 03 months after receipt of copy of this judgment.
5. Instant
Crl. Jail Appeal is disposed of accordingly.
JUDGE
JUDGE
Nasim/P.A