HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.642 of 2018

Appellant              :         Jibran son of Abdul Wahab through Nadeem

Ahmed Azhar, Advocate.

Respondent          :         The State through Mr. Zahoor Shah, Deputy

Prosecutor General, Sindh

Date of hearing     :        19.04.2019

Date of Judgment :        19.04.2019

J U D G M E N T

Abdul Maalik Gaddi, J.– Through this appeal, the appellant Jibran has assailed the legality and propriety of the Judgment dated 28.11.2018 passed by the learned Additional District and Sessions Judge-V, Karachi (Central), in Sessions Case No.275 of 2018, (re. The State v. Jibran), arising out of Crime No.53 of 2018 registered at police station Khawaja Ajmair Nagri, Karachi, under Section 23(1)(a) of Sindh Arms Act, 2013, whereby the learned trial Court, convicted the appellant under section 265-H(ii), Cr.P.C. for offence under Section 23(i)(a) of Sindh Arms Act, 2013, and sentenced him to undergo R.I. for seven (7) years with fine of Rs.25,000/- and in case of default in payment of fine, it was further ordered that appellant shall suffer R.I. for three months more. However, the benefit of Section 382-B, Cr.P.C. was also extended to him. 

2.       The facts of the prosecution case needs not to be reiterated here, as the same have been elaborately mentioned in the memo of appeal as well as in the impugned judgment.

3.       Today this appeal is fixed for arguments. Mr. Nadeem Ahmed Azhar, the learned counsel for appellant contended that the impugned judgment suffers from illegalities and irregularities. During the course of arguments, he submitted that learned trial Court has not been offered fair opportunity to the appellant to submit his defence; that the appellant was not provided fair opportunity to defend himself through his Counsel and witnesses examined by the prosecution were cross examined by the appellant himself, therefore, on this ground alone, the conviction awarded to the appellant by the trial Court is liable to be set-aside and case may be remanded to trial Court for deciding afresh after providing an opportunity to the appellant to cross examine the prosecution witnesses through his Counsel.

4.       Mr. Zahoor Shah, the learned Deputy Prosecutor General, Sindh for the State has recorded his no objection if the case is remanded back to trial Court for providing an opportunity to the appellant to cross examine the prosecution witnesses through his Counsel.

5.       I have considered the submissions advanced from both the sides and carefully perused the record. It needs not to be reiterated that cross examination is the great legal engine invented for the discovery of truth. Fair 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 purposes of testing the veracity of the statement made by a witness. In view of the above discussion, I am of the considered view that the impugned judgment cannot be sustained under the law.

6.       In view of the above and no objection extended by learned Deputy Prosecutor General, Sindh, this appeal is partly allowed. The conviction and sentenced awarded to the appellant vide judgment dated 28.11.2018 are set-aside and case is remanded back to trial Court for trial at the stage of cross examination by providing an opportunity to the appellant to cross examine the prosecution witnesses through his Counsel and thereafter, record the fresh statement of appellant under Section 342 Cr.P.C., preferably, within a period of two months in accordance with law, then delivered the fresh judgment after hearing the parties without influence of his earlier judgment. Mr. Nadeem Ahmed Azhar, Advocate submitted that he would file his Vakalatnama before the trial Court on behalf of appellant.

7.       Office is directed to send back the R&Ps of the case alongwith this judgment to the trial Court immediately for information and compliance. Since the matter pertains to year 2018, therefore, trial Court is directed not to grant any unnecessary adjournment to either side. Compliance report be submitted to this Court through MIT-II.

JUDGE

Faizan A. Rathore/PA*