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Criminal Appeal No.230 of 2014, decided on 28th October, 2014.

----S. 540---Constitution of Pakistan, Art.10-A---Calling witnesses for cross-examination, application for---Out of four witnesses examined by the prosecution, only one witness, who was complainant, was cross-examined by the defence---Applicant/accused alleged that fair opportunity was not extended to him by the Trial Court for cross-examination of remaining witnesses---Application for calling witnesses for cross-examination was dismissed instantly by only one word "rejected"---Trial Court proceeded with the case and convicted applicant through impugned judgment---Validity---Due process of law, and fair opportunity of being defended, was a right of every accused of any offence---Said right had been recognized under Art.10-A of the Constitution---Even if Trial Court thought that application moved by accused could not be granted for any reason, such reason should have been incorporated in the order---Dismissal of the application by single word "rejected" could not be appreciated---Impugned judgment was set aside, and the case was remanded to the Trial Court, with direction to decide the application under S.540, Cr.P.C., for re-calling the prosecution witnesses for cross-examination strictly in accordance with law. Muhammad Hanif Samma along with Fazal Haque Khan for Appellant. Muhammad Iqbal Awan, A.P.G. for the State.

Learned counsel for the appellant submits that in this case before the trial Court prosecution has examined four witnesses out of these four witnesses only one witness, who was complainant namely ASI Mukhtar Ali was cross-examined by the learned defence counsel, whereas, other three witnesses were not cross-examined by the counsel and per learned counsel fair opportunity was not extended to the appellant by the trial Court as when the learned counsel filed Vakalalnama on behalf of the appellant before the trial Court and moved an application for recalling the P.Ws for cross-examination by the counsel, such application was dismissed by only one word "Rejected". This application was dismissed instantly on the same date and thereafter the learned trial Court proceeded with the case and convicted the appellant on 18-8-2014 through judgment impugned in this appeal. Learned A.P.C. fairly submitted that the learned trial Court at least should have given some reasoning for dismissal of application filed on behalf of the appellant. I have perused the order dated 12-8-2014 passed on application of the appellant before the trial Court. This application was dismissed as pointed out by the learned counsel for the appellant by one word. The due process of law and fair opportunity of being defended is a right, of every accused of any offence. Now under Article 10-A of the Constitution of Islamic Republic of Pakistan, this right has been recognized even if learned trial Court thought that the application moved by the accused cannot be granted for any reason, such reason should have been incorporated in the order. Dismissal of such application by single word cannot be appreciated. In view of above impugned judgment dated 18-8-2014 is set aside and case is remanded back to the learned trial Court with the direction that the trial Court should decide application of the accused filed under section 540, Cr.P.C. for recalling the P.Ws. for cross-examination by the advocate strictly in accordance with law District Judge, Karachi East is directed to assign this case to some District Judge other than the learned Judge who has passed Order dated 12-8-2014 on the above referred application. This appeal stands disposed of in the above terms. HBT/A-145-Sindh Order accordingly.

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