IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Jail Appeal No. D–68 of 2018

Before:

                                                Mr. Justice Irshad Ali Shah.

                                                                                    Mr. Justice Arbab Ali Hakro.

Appellant:                            Arif Iqbal s/o Shah Muhammad Chandio

                                                Through Mr.Rukhsar Ahmed Junejo, Advocate

Custom/State:                    Through Mr. Asif Hussain Chandio, Special Prosecutor Custom and Mr.Ghulam Asghar Khichi, D.A.G

Date of hearing:                  16-05-2023.

Date of decision:                 16-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is alleged by the prosecution that the appellant was found transporting through his Car 177 K.Gs of Charas duly kept by him in its secrete cavity, for that he was booked and reported upon. On conclusion of trial, he was convicted u/s. 9 (C) of CNS Act, 1997 and sentenced to undergo Rigorous Imprisonment for life and to pay fine of Rs.100,000/- and in default whereof to undergo Simple Imprisonment for 01 year, with benefit of Section 382(b) Cr.PC, by learned Sessions/Special Judge (CNS), Jacobabad, vide judgment dated 14-11-2018, which he has impugned 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 that examination-in-chief of PW/Mashir Constable Muhammad Shahbaz and Investigating Officer/Inspector Rahib Ali has been recorded in absence of counsel for the appellant, such exercise was contrary to mandate contained by Circular 6 of Chapter VI of Federal Capital and Sindh Courts Criminal Circulars, which prescribes recording of evidence in such like case in presence of counsel for the appellant, as it involves capital punishment. By pointing out so, he suggested for remand of the case for re-examination of above named witnesses in accordance with law, which is not opposed by learned Special Prosecutor Customs and learned A.A.G.

3.         Heard arguments and 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.PC has occasioned in failure of justice and it is also contrary to the mandate contained by Article 10-A of Constitution of Republic of Pakistan, 1973, which prescribes right of fair trial; Consequently, the impugned judgment is set aside with direction to learned trial Court to re-examine the above named witnesses in accordance with law and then to make fresh disposal of the case without being influenced by earlier findings; such exercise to be conducted and completed preferably within 03 months after receipt of copy of this judgment.

5.         Instant Crl. Jail Appeal is disposed of accordingly.

   JUDGE

              JUDGE