THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.19 of 2022
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim
Hussain Tunio
Appellant
: Murad
Bakhsh through Mr. Muhammad Hanif,
advocate
Respondent : The State through Mr. Habib
Ahmed, Special Prosecutor ANF
Date of Hearing : 01.02.2024
Date of
judgment : 01.02.2024
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Appellant Murad Bakhsh was tried by
learned Judge, Special Court-II (CNS) Karachi in Special Case No.187 of 2015,
arising out of FIR No16/2015, registered at PS ANF Clifton, Karachi for offence
under Section 9(c) of the Control of Narcotic Substances Act, 1997. After
regular trial, vide judgment dated 18.12.2021, appellant was convicted under
section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to imprisonment
for life and to pay fine of Rs.300,000/-, in default whereof, he was ordered to
undergo imprisonment for three years more. Appellant was extended benefit of
section 382(b) Cr.PC.
2. At
the very outset, learned advocate for the appellant pointed out that charge was
framed against the appellant for offence under Section 9(c) of the Control of
Narcotic Substances Act, 1997 on 09.06.2015 in absence of defence
counsel. In order to substantiate his submission, he made reference to the case
diary of the said date of trial Court, which is silent about the presence of
the defence counsel on the relevant date. Learned
advocate for the appellant has also referred to Ex.5 at Page 119 of paper book,
it is the statement filed by the advocate for the appellant after framing of
the charge, in which he had undertaken to proceed with the case of the
appellant. It is further submitted that charge was defective and illegality
committed by the trial Court is not curable and it has caused serious prejudice
to the appellant as offence under section 9(c) of the Control of Narcotic
Substances Act, 1997, is punisbale for death or
imprisonment for life.
3. Mr.
Habib Ahmed, Special Prosecutor ANF, after perusal of
the record, confirmed that the charge against the appellant was framed by the
trial Court in absence of the defence counsel.
4. It
may be observed that trial starts from
the date of framing of the charge. Appellant was unrepresented on the date
of framing of the charge, in a case which carries punishment for death or
imprisonment for life. The illegality committed by the trial Court is not
curable under the law. 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).
5. For the
above stated reasons, impugned judgment dated 18.12.2021 is not sustainable under the law and the same is set aside. Appeal is
allowed to that extent. The case is remanded back to the trial Court for
framing the charge afresh, in presence of the defence
counsel and for conducting trial afresh. Since the case is old of 2015, trial
Court is directed to decide the case with three months, under intimation to
this Court.
5. In
the end, learned advocate for the appellant submitted that since the case is
remanded to the trial Court, the same may be directed to hear the bail
application of the appellant during the pendency of the trial. The appellant
would be at liberty to apply for the bail during the pendency of the trial, the
same shall be decided by the trial Court strictly in accordance with law.
6. Instant
appeal is disposed of in the above terms.
J U D G E
J U D G E
Gulsher/PS