MUKHTIAR alias MUKHO vs The STATE

ORDER

ABDUL RUSOOL MEMON, J.---This appeal has been filed against the Judgment dated 19.05.2016 passed by learned III-Additional Sessions Judge Mirpur Mathelo whereby appellant was convicted under section 324, P.P.C. and awarded sentence to undergo R.I. for five years. Appellant was further convicted under section 353, P.P.C. and awarded sentence to suffer R.I for two years. Both the sentences were ordered to run concurrently. However, he was extended benefit of section 382-B, Cr.P.C.

2. The FIR at Exh.10-A was registered on 19.10.2014 at 1940 hours at Police Station Mirpur Mathelo by complainant ASI Allandino Panhiyar at Police Station Mirpur Mathelo under sections 399, 402, 324, 353, P.P.C. against the present appellant and two others namely Saddar alias Sadroo, Liaquat Ali as well as one unidentified person.

3. It is the case of prosecution that on 19.10.2014 a police party headed by complainant ASI Allandino during patrolling on receiving spy information, about presence of accused persons on link road leading from Mirpur to Mathelo near Donkey bridge with intent to commit dacoity, reached at the pointed out place. After exchange of 10 minutes firing present appellant was arrested on spot with Kalashnikov and the other accused Sadar alias Sadroo, Liaquat Ali and two unidentified persons having Kalashnikovs fled away. Mashirnama of arrest and recovery was witnessed by PC Abdul Razaque and PC Ghulam Akber and appellant was brought at Police Station. Complainant lodged two separate FIRs of the incident, one regarding making preparation to commit dacoity by accused being belonging to gang of dacoits and encounter with police viz. Crime No.160/2014 and the other against present appellant being found to be in possession of a Kalashnikov with 8 live bullets crime No.161/2014 Police Station Mirpur Mathelo.

4. At the trial, prosecution examined complainant ASI Allandino and PW PC Abdul Razzak, who acted as first mashir of arrest of accused and alleged recovery made on spot. On conclusion of trial, learned trial Court convicted the appellant as mentioned in supra para and acquitted co- accused Sadar alias Sadroo and Abdul Ghaffar while case against accused Liaquat Ali was kept on dormant file, vide the impugned Judgment.

5. Before arguments on merits, learned counsel for the appellant pointed out that no fair opportunity of cross examination of prosecution witnesses was given to appellant. Per learned counsel complainant ASI Allandino was cross examined by appellant himself and he being a layman asked himself and only one question regarding his innocence and no chance of cross- examination to PW Abdul Razaque was given to him, therefore, he was not defended properly before the trial Court. He further submitted that the trial Court did not play its part to cross- examine the said witnesses in order to extract the truth, as such the conviction and sentence awarded to the appellant being not based on fair trial is not sustainable in law. In support of his contentions he has placed his reliance on the case of Syed Saeed Muhammad v. State (1993 SCM R 550).

6. At the bar learned A.P.G candidly conceded to the legal position of chance of fair trial to be provided to the parties.

7. I have given due consideration to the arguments advanced by the learned counsel for the parties and have gone through the relevant record. As provided under section 340(1), Cr.P.C., the concept of fair trial necessarily includes the right of an accused person to be defended by a counsel of his choice if he can afford one. A perusal, of record shows that it is an admitted position on record that appellant was unrepresented throughout. Trial Court examined two prosecution witnesses but only a single question was put to complainant of his innocence by appellant. No opportunity of cross-examination of PW PC Abdul Razak was provided to accused. The right of fair trial is the essence of criminal justice. Of course, appellant himself cross examined the complainant and asked one question from him but in the legal prospective his cross examination to witness cannot be substituted to cross- examine of a counsel as the practice of providing an opportunity to accused to cross examine the witness himself has been deprecated by the honourable apex Court, in this regard reliance is placed on case of Syed Saeed Muhammad supra. The testing veracity and credibility of the witness is a legal right of the accused which could be achieved through proper cross-examination, as in the case in hand the learned trial Judge has not adopted the proper procedure in concluding the trial as disused herein above, therefore, while allowing this appeal, the impugned judgment is set aside and the case is remanded to the trial Court for a fresh decision after providing an opportunity of cross-examination to the witnesses through counsel and re-examination of appellant in the light of evidence come on record. However, on the plea of engaging his advocate, the appellant would not be entitled to delay the trial and he shall engage the counsel within one month else shall be debarred from taking such plea at any stage and the trial Court shall proceed the case in accordance with law. As the appellant is in custody from the date of his arrest i.e 19.10.2014, therefore, he is allowed bail in the sum of Rs,100,000/- (One lac) and PR bond in the like amount to the satisfaction of trial Court. In the above terms this appeal stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.