Muhammad Yasin (Appellant) VS The State (Respondent)

Cr. Appeal No. 26 of 2007

Cr. Appeal No. 48 of 2007

Date Order with Signature of the Judge

For hearing of case.

{a/w one R&P and one paper book}

12th April, 2017.

Mr. Farid Gul Khan, Advocate for appellant

Mr. Abdullah Rajput, Assistant Prosecutor General, Sindh.

SYED

MUHAMMAD FAROOQ SHAH, J.:- These two appeals are arising from FIR No. 302/2004 under section 3/2(a) F. Order 1951 read with section 14(2) Foreign Act, 1946 registered with Police Station Mithadar, Karachi.

2.Crux of the prosecution story is that the accused being Bangladesh national, without any legal document, by crossing Wahga Border entered into Pakistan via Lahore and stayed in Pakistan without being registered by competent authority.

3.At the very outset, learned counsel for the appellants submits that there were in all four accused; two of them have been acquitted by the trial court under section 265-K Cr.P.C. vide order dated 25.11.2005 on the basis of NARA Card. He further submits that appellants are sailing in the same boat as on identical allegations they were involved in the cases in hand. Learned counsel next submitted that appellants were not provided fair opportunity to defend themselves through their counsel hence witnesses examined by the prosecution were cross-examined by the accused themselves. Learned counsel contended that both the accused were examined under section 342 Cr.P.C. and in reply of first question they claimed themselves to be Pakistani national holding Pakistani citizenship but the trial court did not afford opportunity to them either to examine themselves on oath under section 340(2) Cr.P.C. and to produce documents in their defense.

4.Conversely, learned Assistant Prosecutor General, Sindh is found unable to controvert the contentions of learned counsel for the appellants.

5. I

have considered the submissions advanced from both the sides and carefully perused the record. It needs not to be reiterated that cross-examination is the great legal engine invented for the discovery of truth. Fair opportunity to cross-examine contemplated by the law must be real, fair and reasonable. Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness. In view of the above discussion, I am of the considered view that impugned judgment cannot be sustained under the law.

6.Resultantly, the captioned Criminal Appeals are allowed. The cases are remanded back to learned trial court for de novo trial/decision after affording fair opportunity of hearing/cross-examination of prosecution witnesses including production of documents in defense. The R&Ps of the case be transmitted instantly to the learned trial court who is directed to conclude the trial of the case within a period of three months after receipt of file. Since the appellants are on bail, they shall be treated on same surety submitted before the Nazir of this Court, however they shall execute fresh bail bonds before the trial court.

Both the appeals are decided in the manner indicated above.

*Aamir/PS*

J U D G E