IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Appeal No. D –70 of 2019

Before:

                                                Mr. Justice Irshad Ali Shah.

                                                                                    Mr. Justice Arbab Ali Hakro.

Appellant:                             Gul Bahar son of Rahim Bux Jattak

Through Mr. Sarfraz Khan Jatoi, Advocate.

The State:                               Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing:                    10-05-2023.

Date of decision:                  10-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J;  It is case of prosecution that the appellant  was found transporting through his Dotson pickup 17 K.Gs of Charas in shape of 17 packets, duly packed in a sack, for that he was booked and reported upon by P.S Excise Town, Shikarpur. On conclusion of trial, the appellant was found guilty for the said offence and was convicted u/s. 9 (c) of CNS Act and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for one year, with benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge/MCTC, Shikarpur, vide judgment dated 04.10.2019, which he has impugned before this Court by preferring the instant criminal appeal.

2.         At the very outset, it is contended by learned counsel for the appellant that the appellant during course of his examination under section 342 Cr.PC named Noor Shah and Ahmed Nawaz to be examined by him in his defence; he examined Noor Shah, when was about to examine Ahmed Nawaz, his side was closed by his counsel without his notice and knowledge which has prejudiced him in his defence seriously, as his non-examination has been considered adverse to him by learned trial Court in impugned judgment.      By contending so, he sought for remand of the case to learned trial Court with opportunity to the appellant to examine Ahmed Nawaz in his defence, which is not opposed by learned Addl.P.G for the State.

3.         Heard arguments and perused the record.

4.         Admittedly, Ahmed Nawaz together with Noor Shah was named by the appellant to be examined by him in his defence; the side of the appellant was closed by his counsel without making a narration that appellant is not going to examine him; such aspect obviously has prejudiced the appellant in his defence. Consequently, the impugned judgment is set aside, with direction to learned trial Court to provide fair opportunity to the appellant to examine Ahmed Nawaz in his defence and then to make fresh disposal of the case in accordance with law, without being influenced by earlier finding, preferably within two months, after receipt of copy of this judgment.

5.         The instant criminal appeal is disposed of accordingly.

                   JUDGE

                         JUDGE