JAN SHER KHAN vs The STATE

' FAROOQ ALI CHANNA , J.---The appellant through the instant Criminal Appeal has challenged the conviction under section 302, P.P.C. And sentence to undergo 25 years' R.I. With fine of Rs,2,00,000 to be paid to legal heirs of deceased Muhammad Nadeem Khan with benefit under section 382-B, Cr.P.C. Passed vide judgment dated 12-11-2010 by learned IV Additional District and Session Judge, Karachi-West in Sessions Case No, 456 of 2006 culminated F.I.R. No,100 of 2006 Police Station Peerabad, Karachi under sections 302/34, P. P .0

2. Learned counsel for the appellant, without arguing the appeal on merits, has invited the attention of this court towards some major illegalities committed by trial court while conducting trial and contended that trial court did not allow the adjournment to the counsel for appellant to prepare for the cross-examination and completed the evidence of Investigating Officer affording an opportunity of cross-examination to appellant in person which was against the principle of conducting fair trial whereby trial of accused facing charge of offence carrying capital punishment without assistance of Advocate is nullity in the eye of law. Learned counsel further pointed out that trial court while recording the statement of appellant under section 342, Cr.P.C. Has not put the question regarding the forensic report relied upon by the prosecution, nor the trial court obtained the signature of appellant on his statement under section 342, Cr.P.C. As such the trial is suffering from material irregularities and illegalities vitiating the entire proceedings, she requests for acquittal of appellant on account of illegalities and irregularities stated above causing the trial vitiated.

3. Learned A.P.-G. Has opposed the appeal, however could not controvert the illegalities and irregularities pointed out by the counsel for appellant.

4. Perusal of the record reveals that on 26-1-2009 the trial court examined the Investigating Officer Muneer Ahmed, learned defense counsel after recording examination-in-chief, made an application for adjournment to prepare for the cross-examination but the trial court turned down the request for the reason that there was no rule to adjourn the case for preparation of cross- examination, however trial court provided an opportunity of cross-examination to appellant in person and thereby completed the evidence of Investigating Officer which appears to be against the natural justice and violation of principles of fair trial. Under Article 133 of Qanun -e-Shahadat Order, comparative Article 138 of Evidence Act, cross-examination is a valuable right guaranteed by legislature to an accused to challenge veracity of a witness and is entitled to cross-examine the prosecution witness to adduce the facts in support of his defense from said witness. The principle to observe veracity of witness and credibility of evidence is that the witness who enters in the witness box, states whatever he has to say on oath and then subject to cross-examination constitute a complete statement made by witnesses, however, if opportunity of cross-examination was declined to accused, such evidence as a general rule of evidence is not legally admissible against the accused. In the instant case learned counsel for the appellant was declined to have some time to prepare for the cross-examination of Investigating Officer, the important prosecution witness depriving the defense of his valuable right and opportunity of shacking the credit of prosecution witness by bringing out the contradictions between the statement of prosecution witnesses made to police during investigation and evidence in the Court. It is also matter of record that the prosecution had not closed it's side but the -trial court vide order dated 26-10-2010 had closed the prosecution side observing that material witnesses have been examined and prosecution has not produced other witnesses since 20 months, the matter pertaining to the year 2006 being old one was required to be decided under the directions of National Judicial Policy Making Committee. Besides above, the perusal of impugned judgment reveals that the trial court while recording the conviction has considered the forensic report as corroborative evidence, however no question regarding the forensic report was put to the appellant during his examination under section 342, Cr.P.C. Nor the said statement is signed by the appellant, the above discrepancies and legal defects pointed out by learned defense counsel render the trial unfair, I therefore, set aside the conviction and sentence awarded under the impugned judgment and direct the remand of case for retrial from the stage of cross-examination of Investigating Officer and thereafter decide the case afresh after following proper procedure of examining the appellant under section 342, Cr.P.C.

5. In the above terms, the appeal is allowed.