HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 281 of 2014

Present:

Mr. Justice Naimatullah Phulpoto

JUDGMENT

Date of Hearing : 30.09.2015 .

Date of Judgment : 07.10.2015 .

Appellant : Ali Zaman through Ms. Erum Khan Advocate .

Respondent : The State through Mr. Ali Haider Saleem A.P.G .

NAIMATULLAH PHULPOTO, J.- This Appeal is directed against the judgment dated 16.08.2014 passed by learned VIII-Assistant Sessions Judge, Karachi East in S.C.No. 1148/2013 (The Stae vs. Ali Zaman) arising out of FIR No. 358/2013 registered at P.S Shah Faisal Colony for offence under Section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to suffer R.I for 06 years and to pay fine of Rs.30,000/- and in default of payment of fine to suffer S.I for 1 month more with benefit of Section 382-B Cr.P.C.

2. Brief facts of the prosecution case are that on 06.10.2013 one 30 bore unlicensed pistol was recovered from possession of accused. FIR was lodged on behalf of state under section 23(1)(a) of the Sindh Arms Act, 2013. After usual investigation, challan was submitted against accused.

3. Charge was framed against the appellant to which appellant pleaded not guilty and claimed his trial.

4. In order to prove it’s case, prosecution examined the following witnesses:

(i) HC Muhammad Khalil at Ex.3

(ii) PC Muhammad Ramzan at Ex.4

(iii) ASI Rana Muhammad Javed at Ex.5

Thereafter, prosecution side was closed.

5. The statement of accused was recorded u/s 342 Cr.P.C, in which he claimed his false implication in this case and denied the prosecution allegations.

6. Learned Trial Court after assessment of the evidence, convicted and sentenced the appellant as stated above.

7. Learned counsel for the Appellant argued that appellant was unrepresented and fair opportunity was not provided to him to engage a counsel. It is also argued that Appellant was in jail and his family had no sufficient means to engage counsel. It is also argued that prosecution witnesses were cross examined by the appellant and trial court failed to discharge the primary duty by putting some questions from the prosecution witnesses to discover the truth. She submitted that case may be remanded back to the trial court for providing fair opportunity to the accused to cross examine the witnesses. In support of her contention, reliance has been placed upon the case reported as Abdul Ghafoor vs. The State (2011 SCMR 23).

8. Learned APG recorded no objection in case matter is remanded back to the trial Court for providing an opportunity to accused for cross-examination of prosecution witnesses.

9. I have perused depositions of the prosecution witnesses it appears that prosecution witnesses namely HC Muhammad Khalil, PC Muhammad Ramzan and ASI Rana Muhammad Javed were examined by the Trial Court and were cross-examined by the accused himself. I am persuaded to hold that it is primary duty of the Court seized of a matter to ensure that truth is discovered. In this case, prosecution witnesses were cross-examined by accused himself. The evidence so recorded could be of no significance and conviction cannot be safely based on the basis of such evidence, unless the credibility of witnesses is tested on the touchstone of cross-examination. Injustice is likely to occur in a case where cross-examination on prosecution witnesses was not conducted by Advocate for accused. Even the cross-examination conducted by accused himself has not been considered to be substitute of cross-examination conducted by a counsel. Learned Trial Judge unfortunately did not adopt said course and asked accused to cross-examine experienced police witnesses for which obviously accused had not requisite expertise. Procedure adopted by trial Court is reflective of miscarriage of justice. The right of cross-examination has from times immorial been held, to be particularly in criminal cases a valuable right to accused. Judicial officer should use his greater experience to cross-examine witnesses where he sees that accused is unrepresented. Article 10-A inserted in the Constitution (Eighteenth Amendment) Act X of 2010 provides as under:--

"10-A. Right to fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process".

10. Concept of fair trial and due process had always been the golden principle of administration of justice, but after incorporation of Article 10-A of the Constitution, it had become more important and due process should be adopted for conducting a fair trial.

11. Learned counsel for the appellants has rightly relied upon the case of Abdul Ghafoor (supra), in which honourable Supreme Court has observed as under:--

"With immense respect to the learned Judges of the High Court, we are persuaded to hold that it is the primary responsibility of the court seized of a matter to ensure that the truth is discovered and the accused are brought to justice. If the learned trial Court found that the counsel engaged by the appellant had sought too many adjournments, even then he was not appearing, the court could either have directed that a defence counsel be provided to the appellant at State expense or could have given last opportunity to the appellant to make alternate arrangements failing which the court would proceed to decide the matter. This course was not adopted by the learned trial Court and instead on 2-12-1999 gave a total surprise to the appellant by asking him to cross-examine those witnesses for which obviously neither the appellant had the requisite expertise nor he was prepared to do so. In these circumstances and in view of the fair concession given by the State, we find that the procedure adopted by the learned trial Court is reflective of miscarriage of justice and the appellant be provided one opportunity to have the afore-referred witnesses cross-examined. Consequently, this appeal succeeds on this short ground. The impugned judgment of the learned High Court dated 19-3-2000 and that of the learned trial Court dated 30-5-2000 are set aside. The case is remitted to District and Sessions Judge, Rawalpindi who shall either proceed with the matter himself or entrust the same to Additional District and Sessions Judge. The appellant shall be treated as under trial prisoner. He shall be given one opportunity to cross-examine the two witnesses referred to in paragraph 6 above and thereafter the court shall decide the matter within 15 days of the said opportunity given. The parties are directed to appear or arrange representation before the District Judge for 20-5-2010 who shall proceed with the matter in terms of this order".

 12. The ratio in above cited case-law is that a fair opportunity should be granted to accused to engage an advocate for cross-examination of prosecution witnesses.

13. In the view of above legal position, I am of the considered view that appellant should be provided an opportunity to cross-examine witnesses. Learned counsel appearing for the appellant is also prepared to file power on behalf of appellant before the trial Court.

14. For the aforesaid reasons and the circumstances conviction and sentences recorded by the Trial Court vide judgment dated 16.08.2014 are set aside. Appellant is in custody since the date of his arrest i.e. 06.10.2013, therefore he shall be released on bail subject to his furnishing solvent surety in the sum of Rs.100,000/-(Rupees One Lac Only) and P.R bond in the like amount to the satisfaction of the Trial Court. Case is remanded back to the Trial Court. Appellant shall be given a fair opportunity to engage an Advocate for cross-examination. He shall be given one opportunity to cross-examine three prosecution witnesses. The parties are directed to appear or arrange representation before Trial Court on 14.10.2015. Trial Court is directed to conclude the trial within one month under intimation to this Court.

This Criminal Jail Appeal is disposed of in the above terms.

JUDGE

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