MUHAMMAD ASLAM vs The STATE and others

1. ASJAD JAVAID GHURAL, J.---Through this appeal, appellant Muhammad Aslam has challenged the vires of judgment dated 13.05.2016 passed by the learned Additional Sessions Judge, Kot Addu whereby he was convicted and sentenced in case FIR No,387 dated 30.12.2014 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Sinawan to rigorous, imprisonment for four years and six months with the fine of Rs,20,000/- and in default of payment of fine, to further undergo simple imprisonment for five months. The appellant was held entitled to the benefit of section 382-B, Cr.P.C.

2. 2.The appellant was booked in this case with the allegation that on 30.12.2014, he was apprehended by the police on suspicion and was found in possession of charas weighing 1255- grams.

3. 3.Without touching merits of the case, learned counsel for the petitioner has drawn our attention to the fact that during trial, the trial Court recorded examination-in-chief of five prosecution witnesses and reserved right of the appellant to cross-examine the said witnesses and without affording proper opportunity to the appellant to defend his case or even to appoint defence counsel at the State expenses, closed his right of cross-examination and proceeded to pass the aforesaid conviction.

4. 4.Learned Law Officer has gracefully conceded that the appellant has not been given fair opportunity to defend his case.

5. 5.Considering the aforesaid contention raised by learned counsel for the appellant, we have perused the record and have noticed that during trial, the trial Court recorded examination-in- chief of five prosecution witnesses and reserved right of the appellant to cross-examine the said witnesses instead of appointing counsel on his behalf at the State expenses. The perusal of proceedings of the trial Court further reveals that though the trial Court had granted opportunities to the appellant to engage counsel to cross-examine the prosecution witnesses for many times yet at the same time the trial Court was under legal obligation to appoint counsel for the appellant on State expenses. To defend any criminal proceeding, whether heinous or minor, is a fundamental and essential right of an accused protected under Article 10-A of The Constitution of Islamic Republic of Pakistan, 1973 and Articles 133 and 151 of the Qanun-e-Shahadat Order, 1984. Right of cross-examination is not merely a formality but a valuable right conferred by the law. Even otherwise, in reaching the just and fair conclusion of trial, the appellant must not be stripped of his valuable right of fair, reasonable and impartial trial in due course of law and to do away with the same, is the negation of concept of due process of law. In the case in hand, the appellant was not given even a single opportunity to himself cross-examine the prosecution witnesses.

6. For what has been discussed above, without touching merits of the case, we accept the appeal in hand, set aside impugned judgment dated 13.05.2016 and remand the case of the appellant with the direction to the trial Court to grant fair opportunity to the appellant to appoint the services of counsel of his own choice or to appoint defence counsel on State expenses. The appellant shall be treated as under-trial prisoner. The case shall be decided at the earliest. The parties are directed to appear before the trial Court on 02.01.2017.