Nusrat Hussain Kalhoro vs State S — 2026 YLR 1115 KARACHI-HIGH-COURT-SINDH

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Nusrat Hussain Kalhoro VS State S. 9(c)---Possession of narcotic substances---Appreciation of evidence---State defence counsel---Not well equipped for cross-examination---Accused was charged for having in his possession 19-kilograms charas---Record transpired that all the prosecution witnesses were examined on the same day viz. 08.05.2024---Counsel appointed on state expenses did not conduct the cross-examination of the witnesses properly---Even it appeared that the cross-examination of the material witnesses complainant and recovery witness was mere reproduction in a copy paste manner---Reappraisal of the examination in chief and cross-examination of the said two witnesses revealed that there was no significant difference in evidence of both the witnesses recorded before Trial Court---Conduct of witnesses to utter ditto copy facts of the incident was an act humanly impossible---Said fact led to an inference rather conclusion that the evidence of both two witnesses was copied and pasted---Evidence of the witnesses was not recorded in line with the intent and wisdom of the legislation articulated under S.353, Cr.P.C., and Arts. 130, 131, 132 & 133 of the Qanun-e-Shahadat, 1984, which offended the fundamental rights of the appellant as to "fair trial" enunciated under Art.10-A of the Constitution, 1973---Counsel engaged on State expenses did not discharge his professional duties in accordance with the code of conduct of legal ethics laid down under the Legal Practitioners and Bar Councils Rules, 1976---Said counsel treated the evidence of prosecution witnesses as a mere formality---If said counsel was not interested to pursue the matter with professional ethics, he should have refused to accept his engagement as defence counsel on State expenses---Duty of the counsel engaged on State expenses to come properly prepared and conduct cross-examination on all the aspects of prosecution case with which the witnesses charged the appellant in their statements recorded during investigation, including the manner of arrest, recovery and safe custody and transmission of the recovered contraband from place of recovery to police station and then to forensic laboratory---Right to cross-examination was not an empty formality but a valuable right, cross-examination was instrumental to evaluate the evidence of witness and to reach a conclusion about the veracity of the testimony of the witness---Cross-examination helped to arrive at a just and fair decision of the case---Criminal cases rested on the oral testimony of witnesses, the cross-examination was legal engine devised to unearth truth, therefore, in all fairness the cross-examination should be properly conducted---Trial Court seized with the matter was also required to remain vigilant during recording of evidence, particularly in the cases where accused was unable to engage the services of private counsel---Since the appellant was a layman, he was not aware about the consequences of lacuna and shortcomings in cross-examination, Trial Court was burdened to see whether the counsel engaged on State expenses was capable of proceeding with the matter and well equipped with the professional command to handle the case---If Trial Court found the counsel not well equipped with the art of conducting cross-examination, the matter should have been adjourned and case could have been assigned to another counsel---Perusal of the cross-examination conducted by the defence counsel in the present case revealed that witnesses were not cross-examined on the recovery, arrest and seizure proceedings thus evidence of the prosecution witnesses to that extent remained unchallenged and stood admitted---Said aspect of the case went unnoticed by the Trial Court and trial culminated into conviction and sentence of appellant for a rigorous imprisonment to life and fine---Since the opportunity of fair trial was not accorded to the accused/appellant, the counsel engaged on State expenses failed to discharge his duty in accordance with law, he remained apathetic to cross-examine the prosecution witnesses and put suggestions to the extent of mere denial of prosecution story, which otherwise amounted to admission of the charge---Mistake so committed during trial vitiated all the proceedings including the conviction of the appellant---Errors and omissions in the trial were of such grave and serious nature that could not be cured under S.537 of the Cr.P.C.---Appeal was allowed by setting aside the conviction and sentence awarded to the appellant and matter was remanded back to the Trial Court for de novo trial from the stage of recording of the evidence of prosecution witnesses by appointing counsel on State expenses, in case appellant demonstrated inability to engage private counsel.

Nusrat Hussain Kalhoro vs State S — 2026 YLR 1115 KARACHI-HIGH-COURT-SINDH

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