THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 320 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Appellant : Noor Ali through Mr. Aminullah Kakar, advocate

Respondent : The State through Mr. Ali Haider Saleem Addl. P.G

Date of Hearing : 15.01.2024

Date of judgment : 15.01.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Noor Ali was tried by learned V-Additional Sessions Judge/MCTC Karachi East for offence under Section 9(3) E and 32 of Control of Narcotic Substances (Amendment) Act, 2022 Amendment Act. After regular trial, vide judgment dated 13.06.2023, appellant was convicted under section 9(3), Control of Narcotic Substances (Amendment) Act, 2022 and sentenced to 14 years R.I and to pay fine of Rs.400,000/-, in default whereof, he was ordered to undergo S.I for 05 months more. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Briefly the facts of the prosecution case leading to filing of appeal are that on 01.10.2022 Inspector Ali Muhammad of PS Excise Korangi Karachi along with his subordinate staff, on spy information, reached at pointed place i.e. Chakra Goth, Baloch Road, near Bilal Masjid, District Korangi, Karachi, where one white colour car bearing Registration No.BRN-774 came and stopped there. On the pointation of spy informer, complainant with the help of his subordinates encircled the said car and introduced himself to the person, sitting on driving seat of said car who, on query, disclosed his name as Noor Ali son of Fazal Karam. Complainant also searched car in presence of mashirs and recovered one white colour bag (bora) on the floor of front passenger seat of said car. On opening of said bag charas in the shape of 10 packets wrapped with yellow colour tape was recovered. From search of accused original CNIC of accused, cash Rs.2500/-, original registration book of car in the name of Naimat son of Mazhar Gul and one mobile phone Nokia of black colour was also recovered. Thereafter, charas was weighed and it became 10 kilograms. Inspector sealed all packets of charas at the spot for chemical analysis and has also taken the car of accused in police custody. Thereafter, complainant arrested the accused for offence u/s 9(c), Control of Narcotic Substances Act, 1997, prepared such memo in presence of official mashirs and then brought the accused and case property at police station where instant FIR was lodged by complainant against the accused. On conclusion of usual investigation, IO submitted charge sheet against the accused u/s 6/9(3)E and 32 of the Control of Narcotic Substances Act, 1997.

3.       Record reflects that after amendment of charge, plea of appellant was recorded on 17.02.2023 but the signatures of appellant were not obtained and left the same blank. Scanned copy of plea Ex.04/A is as under:

It clearly shows that charge was not read over and explained to the appellant at the time of framing the same. Such omission is contrary to fair trial as guaranteed under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973. When confronted such omission to the counsel for the parties, it was submitted that such omission could only be cured on remand of case. Reliance is placed upon the case of Bashir Ahmed vs. The State (SBLR 2021 Sindh 112).

4.       In view of above, the impugned judgment dated 13.06.2023 is set aside; case is remanded with direction to learned trial Court to proceed with the case afresh in accordance with law right from the stage of recording of plea of the appellant and on conclusion of trial dispose of the same expeditiously. Appellant shall be treated as under trial prisoner. Senior Superintendent, Central Prison, Karachi, shall produce the appellant before the trial Court on 02.02.2024. Learned counsel for appellant submits that appellant is in custody since the date of his arrest (i.e. 01.10.2022) and prayed for bail. Since the case is remanded to the trial Court, the accused may approach the trial Court for bail. If the bail application is moved, the same shall be decided by the trial Court in accordance with law.

5.       Instant appeal is disposed of in the above terms.

J U D G E

J U D G E

Gulsher/PS