Cr. Appeal No. 309 of 2016
Date Order with Signature of the Judge
1.For hearing of case.
2.For hearing of Bail Application under section 426 Cr.P.C. M.A.No.9261/2016.
3rd April, 2017.
Mr. Khalid Mehmood Shaikh, Advocate for appellant.
Mr. Abrar Ali Khichi, 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 13.08.2016 passed by learned IVth Additional Sessions Judge, South, Judicial Complex, Jail Road, Karachi, whereby the appellant Muhammad Imran son of Muhammad Shafi was convicted under section 265-H(ii) Cr.P.C. for the offence punishable under section 23(A-1) Sindh Arms Act, 2013 and he was sentenced to suffer ten years RI and fine of Rs.25,000/- was also imposed upon him, in default whereof he shall suffer six months more SI; however benefit of section 382-B Cr.P.C. was extended to the accused.
2. Succinct facts of the appeal in hand are that on 24.11.2014 at about 1440 hours the complainant SIP Muhammad Ishaq lodged FIR and stated that the accused Muhammad Imran was arrested in crime No. 305/2014 under section 353/324/34 PPC (subjudice before the trial court), during search one unlicensed .30 bore pistol without number alongwith one live bullet was recovered from his possession as per Mashirnama and FIR.
3. I have heard the learned counsel for the appellant and Assistant Prosecutor General, Sindh. I have also gone through the material including the evidence brought on record by the prosecution before the trial court.
4. From perusal of record it appears that all three prosecution witnesses were examined on single day without affording opportunity of cross-examination to defense counsel due to his absence. It appears that cross examination was conducted by the trial court though admittedly the court can put any question to any one whether relevant or irrelevant under section 161 of Qanun-e-Shahadat Order, 1984 but the court cannot act on behalf of the defense. More so, the questions which learned court put to the witness do not show that due to some ambiguity in the evidence the said cross-examination was conducted by the trial court. In such view of the matter learned Assistant Prosecutor General, Sindh, after arguing the matter to some length, submits that it is legal and Constitutional right of every accused that fair opportunity of cross-examination be provided to him through his counsel and court cannot perform such duty. 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. In view of the above discussion, I am of the considered view that impugned judgment cannot be sustained under the law.
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 and providing legal assistance to the appellant and in case he has no enough means, counsel at State expenses be provided to him. I am fortified with the judgment reported as Muhammad Shahid V/S The State (2010 P.Cr.L.J. 812). 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 three months after receipt of file.
6. Since at the time of pronouncement of impugned judgment the appellant was Under Trial Prisoner, therefore, he shall be treated as Under Trial Prisoner.
The appeal is decided in the manner indicated above.
*Aamir/PS* J U D G E