Cr. Appeal No. 13 of 2016
Date Order with Signature of the Judge
1.For hearing of case.
2.For hearing of M.A.No.371/2016.
{A/w R&P in one part and one paper book}
{Jail roll filed at flag}
12th April, 2017.
Mr. Nadeem Ahmed Azar, Advocate for appellant.
Mr. Abdullah Rajput, Assistant Prosecutor General, Sindh.
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SYED MUHAMMAD FAROOQ SHAH, J.:- The instant appeal has been preferred under Section 410 Cr.P.C. against the impugned judgment dated 26.11.2015 authored by Mr. Safi Muhammad Pirzada, learned Ist Additional Sessions Judge, Malir, Karachi, whereby by taking lenient view being of a youngster age about 32 years the appellant was convicted under section 23(A-1) Sindh Arms Act, 2013 and sentenced the appellant to suffer RI for seven years and to pay fine of Rs.20,000/-, in default whereof to suffer SI for two months more; however benefit of section 382-B Cr.P.C. was extended to the appellant.
2. I have scanned the record with the able assistance of Mr. Nadeem Ahmed Azar, Advocate representing the appellant and Mr. Abdullah Rajput the learned Assistant Prosecutor General, Sindh representing the State.
3. This is a case of recovery of illicit weapon i.e. 9 mm pistol loaded with magazine containing 10 live bullets.
4. It is an admitted position reflects from the record that Advocate engaged by the appellant did not show his appearance before the trial court at the time of recording of deposition of prosecution witnesses and statement of accused under section 342 Cr.P.C. besides evidence of DW Kamran (Exh: 9). In such view of the matter learned Assistant Prosecutor General, Sindh submits that it is legal and Constitutional right of every accused that fair opportunity of cross-examination be provided to him through his counsel. The contention raised by learned Assistant Prosecutor General, Sindh appears to be in accordance with law, Constitution as well as under the Qanun-e-Shahadat Order, 1984. It needs not to be reiterated that cross-examination is the great legal engine invented for the discovery of truth. Opportunity to cross-examine contemplated by the law must be real, fair and reasonable. Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness. No doubt the appellant had engaged counsel who had failed to appear, the appellant could not be blamed as he had engaged counsel from local bar. More so, expeditious disposal of trials was no doubt a good thing but it should not be at the cost of fair and just trial. It is settled principle of law that law leans adjudication on merits by providing fair opportunity to the accused. To meet the ends of justice and to see that none of the parties suffers on account of failure to bring on the record material evidence I consider it fit to remand the matter to trial court for deciding the matter afresh.
5. Resultantly the captioned Criminal Appeal is allowed. The case is remanded back to learned trial court for de novo trial/decision after affording fair opportunity of hearing/cross-examination to both the parties. The R&P of the case be transmitted instantly to the learned trial court who is directed to conclude the trial of the case within a period of two months after receipt of file. Since the appellant is in custody, he shall be treated Under Trial Prisoner.
6. Mr. Nadeem Ahmed Azar, Advocate representing the appellant before this Court assures that he shall file Vakalatnama on behalf of appellant before the trial court and will appear there on 26.4.2017.
The appeal is decided in the manner indicated above.
*Aamir/PS* J U D G E