1. ' HASAN FEROZ, J.---This order shall dispose of Criminal Appeal No.103/2014 under Section 410, Cr.P.C. Preferred on behalf of the appellant who being aggrieved and dissatisfied with the judgment dated 27.02.2014 passed by the VIII Assistant Sessions Judge, Karachi East in Sessions Case No. 1027/2013 whereby the appellant has been convicted under Section 265-11(ii) Cr.P.C. For an offence under section 23-A. And sentenced to suffer. R.I. For 7 years and to pay fine of Rs.30,000/- in case of default in payment of fine the appellant shall further suffer S.I. For one month.
2. The benefit of Section 382-B, Cr.P.C. Was also extended to the appellant.
2. Learned counsel for the appellant has contended that the trial Court has proceeded with the matter in hasty manner, which is evident from the case diaries of the trial Court in Sessions Case No. 1027/2013 that on 17.02.2013 one witness Complainant SIP Mumtaz Ahmed Mehar was examined and the matter was adjourned to 20.02.2014, however on that date due to strike all of K.B.A. The case could not proceed and was adjourned to 25.02.2015 and on that date two witnesses were examined in absence of defence counsel who at that time was busy in some cases before the High Court, however soon after the evidence of PWs. H.C. Aftab Ahmed and $.1. Akbar Khan was completed he appeared and filed application under Section 540 Cr.P.C. For recalling the said witnesses so as to opportunity of cross-examination may be availed, but the said application was dismissed with no cogent reasons, therefore, no cross examination was conducted upon both the said witnesses,ADPP filed statement to close the side and the matter was fixed on the next date ,i.e.26.02.2014 for examination of appellant under Section 342, Cr.P.C. On the next day i.e.27.02.2014 the impugned judgment was passed that too without an opportunity of hearing/arguments and the appellant was convicted and sentenced as referred to herein above.
3. ' Learned counsel for the appellant has contended that the impugned judgment has been passed without considering the lacunas in the recovery proceedings. That the trial Court did not consider the contradiction/discrepancies in the evidence of the prosecution and also did not consider the defence plea of the appellant and passed the impugned judgment arbitrarily. That the learned trial Court committed gross illegality while passing the impugned judgment as all the PWs were police officials and no person from the locality was cited as mashir of alleged recovery while the recovery was shown from very thickly populated area, which is clear from the mashirnama and FIR while the name of the mashirs of the alleged recovery do not appear in the FIR and trial Court also failed to consider the legal aspect of the case as the Sindh Arms Act, 2013 will not prevail over the Cr. P.C.
4. And the mandatory provisions of Cr.P.C. Were not complied by the police/prosecution.
5. ' Lastly learned counsel contended that the impugned judgment dated 27.02.2014 passed by the learned Trial Court is liable to be set aside as the same is contrary to the facts and circumstances of the case and law laid down by the superior Courts and thus learned trial Court committed gross illegality while passing the impugned judgment.
6. ' Learned APG on confrontation could not controvert the aforesaid assertions made by learned counsel for the appellant and extended no objection for setting aside the impugned judgment, remanding the case to the trial Court for deciding afresh.
7. In view of the above, it appeared that the trial Court conducted the trial in hasty manner, PWs. HC Aftab Ahmed and SI Akbar Jan were not cross-examined the request of defence counsel for recalling the said witnesses made on the same day was turned down without cogent reasons. No opportunity of arguments was afforded to the defence counsel, which is unfair. The fair trial is fundamental right of the accused protected by the Constitution, 1973, such fundamental right of accused in the case in hand has been violated, as such the impugned judgment is suffering from infirmity, therefore cannot be held to sustain. Accordingly the conviction and sentence awarded to the appellant under the impugned judgment dated 27.02.2014 is set aside, the case is remanded to the trial Court for re-trial from the stage of cross-examination to HC Aftab Ahmed and SI Akbar Jan and after affording an opportunity of hearing to the counsel for both the parties decide the case afresh strictly on merits in accordance with law.
8. ' Learned counsel has pointed out that during trial the appellant was on bail, he requests that he may be allowed to remain on bail, such request is opposed by learned AGP. Accordingly the appellant is allowed to remain on bail, however subject to his furnishing fresh surety in the sum of Rs.30,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.