1. ' HASAN FEROZ, J.---This order shall dispose of Criminal Appeal No,103/2014 filed under section 410, Cr.P.C. On behalf of the appellant who being aggrieved and dissatisfied with the judgment dated 27-2-2014 passed by VIIIth Assistant Sessions Judge, Karachi. (East) in Sessions Case No,1027/2013 whereby the appellant was convicted under section 265-H(ii), Cr.P.C. For an offence under section 23-A(i) of Sindh Arms Act, 2013 and was sentenced to suffer R.I. For seven (07) years and to pay a fine of Rs,30,000 in case of default of payment of fine, he shall suffer S.I for one month, however he was extended the benefit of section 382-B, Cr.P.C.
2. ' The learned counsel for the appellant has contended that the trial Court has not considered the contradictions/discrepancies in the evidence of Prosecution nor taken into consideration the plea of defence/appellant. No private witness was cited or examined by the prosecution as mushir of alleged recovery and furthermore the accused was apprehended on spy information, which created doubt in the prosecution story but the trial Court did not consider the same.
3. ' The crux of contention of appellant is that the trial Court has not given the right of cross- examination to the witnesses by the appellant or his counsel which is evident on Deposition sheet and that the trial Court has proceeded with the matter in hasty manner, such is evident from the case diaries of the trial Court in Sessions case No,1027/2013. He has contended that on 17-2-2014 one witness i,e, complainant SIP Mumtaz Ahmed Mehar was examined who was cross-examined by appellant's counsel whereafter the matter was adjourned on 20-2-2014 and on 20-2-2014 due to strike call of lawyers of K.B.A the case of appellant could not proceed and the matter was adjourned to 25-2-2014 whereon that date two witnesses were examined in absence of the counsel for appellant who on the same day was busy before High Court and such fact was communicated by the appellant to the trial Court however the trial Court without considering the request of accused/appellant proceeded in haste with the matter and thus the appellant was deprived of his precious lawful right of cross-examination resultant thereto he was convicted. The learned counsel has also argued that the learned trial Court has ignored the evidence which came on record and even on merits of the case, the appellant could not be convicted since the Prosecution case suffers from material contract' ;tions as the alleged recovery and arrest of appellant is doubtful, therefore, the Judgment of trial Court may be set-aside and the appellant may be acquitted.
4. ' The learned APG has vehemently opposed the submissions advanced by the learned counsel for appellant and contended that the fair opportunity was afforded to the appellant during the trial of the present case however, the appellant by using delaying tactics avoided to proceed with the matter and the trial Court has proceeded with the matter in accordance with law. The trial Court after considering the available evidence has rightly convicted the appellant as no contradiction appears in the evidence of the prosecution and prosecution has proved its case beyond any doubt, therefore, the judgment of trial Court may be upheld.
5. ' I have patiently heard the learned counsel for appellant, learned APG and also perused the record and R&Ps of the case. The record shows that the instant Appeal has been preferred against the Judgment of Assistant Sessions Judge in the matter of conviction of 7 years which is required to be filed under section 408, Cr.P.C. Instead of section 410, Cr.P.C. However such error of mentioning of wrong section would not come in the way of dispensation of Justice.
6. ' The point for determination is thus circumscribed as to whether appellant was afforded with fair opportunity during the trial or not.
7. ' I have in my consideration that the appellant was booked for an offence falling under section 23- A(1) of Sindh Arms Act, 2013 and on his arrest one unlicensed .30 bore Pistol bearing No,A-5350 with two live bullets loaded magzine was recovered from his possession, therefore, the present FIR was lodged. The record shows that the charge was framed by the trial Court for the said offence on 4-1- 2014 which was denied by the appellant and thus the Prosecution evidence was led. The evidence of Complainant Mumtaz Ahmed Mehar was recorded on 17-2-2014 who was cross-examined whereas the evidence of P.W. Aftab Ahmed and P.W. Akbar Jan was recorded on 25-2-2014 who were not cross-examined by the counsel for appellant. The trial Court has provided four hours to the Counsel for appellant to appear and cross-examine however, without being cross-examined the matter proceeded to 26-2-2014 for the statement of accused under section 342, Cr.P.C. Which was recorded and the trial Court on 27-2-2014 has announced the judgment, as such the contention of the learned counsel for appellant is not without strength that the trial Court has proceeded the matter in haste so also the opportunity for final arguments was also not afforded by the trial Court to the Counsel for appellant, as contended by learned counsel.
8. ' I have in my view that right to fair trial is the essence of criminal justice whereby each and every party is equal before the Court and should be provided fullest opportunity to advance its case and such right being enshrined under fundamental Rights under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 which postulates fair opportunity of trial. I have in my view that the Court while proceeding with a matter has to keep in mind that no one should be deprived of precious right of defence or in other words to be condemned unheard/Audi Alteram Partem, which is lacking in the present case rather the record shows that the trial Court has taken down the prosecution evidence of two witnesses in stereo typed manner in one day without being cross-examined by the adversary. The essence of Qanun-e-Shahadat Order, 1984 as required under Chapter X has not been adhered to in its letter and spirit under Article 133 of Qanun-e-Shahadat Order, 1984 and thus the trial conducted in haste by ignoring the principles of fair trial and due process as has been guaranteed under the Constitution of 1973.
9. ' I have also in my view that in the criminal administration of justice the Court ought to provide fair opportunity, it is the cardinal principle that accused under section 340, Cr.P.C. Is to be defended by lawyer of his choice whereas in the instant case the counsel was absent and unable to appear on such date, this aspect was required to be justifiably taken into consideration by the trial Court before closing the side of accused with "No cross".
10. ' It is the tyranny that the criminal cases are lingering on for years and are adjourned from time to time for one or the other reasons however as in the instant matter a duty is also cast upon learned counsel for accused/appellant to seek adjournment from the trial Court by making proper application setting forth the reasons of his inability in prior point of time which the learned counsel has urged during the hearing of this appeal that he was busy before High Court could have averted the situation. I have also in my view that the Sindh Arms Act, 2013 being a newly promulgated law, the learned trial Court might have taken steps of undue haste and speed to proceed with the matter whereas the procedure for taking down the evidence and the trial of a criminal case as enunciated in the Code of Criminal Procedure and the Qanun-e-Shahadat Order, 1984 in line with Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 are to be strictly followed during the trial.
11. ' In the above legal and factual spectrum, I am of the view that the trial Court has not provided the opportunity for cross-examination of P.W.2 Aftab Ahmed and P.W.3 Akbar Jan, to the appellant. The judgment of the trial Court would not sustain and therefore, the conviction and sentence of the appellant is set aside and the case is remanded to the trial Court with direction to allow cross- examination of the witnesses from the stage of evidence of P.W.2 Aftab Ahmed and P.W.3. S.I. Akbar Jan by providing full and fair opportunity to the appellant and after hearing both the parties, decide the matter afresh, accordingly.
12. ' The learned counsel for the appellant has pointed out that during the trial the appellant was on bail, he requests that the appellant may be allowed concession of bail, the appellant is allowed bail subject to furnishing his surety in the sum of Rs,30,000 and a P.R. Bond in the like amount to the satisfaction of trial Court.