1986 P Cr (PLP)

2. I do not intend to discuss the facts of this case because the appeal is to be disposed of on the two preliminary legal points raised by the learned counsel for the appellant. The first point urged was that there was no proper sanction in this case. The officer who gave the sanction was Settlement Officer; he was not competent in law to grant sanction, because the appointing authority of the appellant was the Collector and it was Collector alone who under law was competent to give sanction. Relying on Rashid Ahmad v. The State P L. D 1972 S C 271, it was argued that proper sanction of the, appropriate authority was mandatory and in absence thereof the entire proceedings were coram non judice. The second point urged was that on 9‑5‑1978, the appellant submitted an application to the learned Special Judge under section 540, Cr.P.C., for recalling certain prosecution witnesses for further cross‑examination. Learned counsel submitted that in this application very strong reasons were given by the appellant as to why he wanted to re‑summon the witnesses. It was submitted that this application was disposed of by the learned Special Judge by an arbitrary order which was to the following effect:‑‑ "I have seen the record and I find no reasonable grounds to call any witness under section 540, Cr.P.C. This application has no force in it and cannot be granted." Relying on State v. Muhammad Jamil P L D 1965 S C 681, learned counsel argued that the right of an accused person to defend himself includes the fundamental right of cross‑examination. The mere fact that he got hold of another counsel instead of his own counsel would not mean that he was duly represented and that proper and reasonable opportunity was given to the appellant. Reliance was also placed on Hakeem v. The State P L D 1963 Kar. 63, where it had been observed:‑‑- "The right of cross‑examination has from time 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 his examination‑in‑chief. In the case quoted by the learned counsel appearing on behalf of the applicant and referred to above Sajjad Ahmad, J. has used these words:‑‑ 'A statement of a witness under the Evidence Act is not effective and complete unless it is subjected to cross‑examination by the opposite party or unless the opposite party had an opportunity to do so and which it has declined or not availed of. The right of cross‑examination is of particular importance for accused persons in criminal trials involving their life and liberty depending on the verbal statements of the witnesses deposing against them. It, therefore, seems to me that the failure on the part of the S.D. M. in this case to allow the applicant's counsel an opportunity of fully cross‑examining the prosecution witnesses prejudicially affects the proceedings in this matter to such an extent as to render such proceedings illegal and invalid. Mr. Imam Bakhsh Sheikh appearing on behalf of the State conceded that the S.D.M. should have allowed the applicant a chance of cross-examining the prosecution witnesses and that his failure to do so has vitiated the order passed by him. Last of all, it was submitted that the trial Court was under legal obligation to give specific reason for rejecting the request of the appellant.

3. I have also heard the learned counsel for the State.

4. I have considered the above two points and I think both of them are quite weighty. There is nothing on the record to show that either the Settlement Officer was competent to grant sanction or that necessary powers had been delegated to him. Had it been a case of wrong description of designation, then the objection raised by the learned counsel was of no importance, but it does not appear to be sq.

5. I have gone through the contents of the application filed by the appellant under section 540, Cr.P.C. Good grounds were given in that application and if those were to be turned down, then the trial Judge was under a legal obligation to give cogent reasons in support of his order, in proceedings which are judicial or of quasi‑judicial nature, whether the order passed is interim/final, or a judgment, it must be supported by cogent reasons, otherwise it may amount to an arbitrary order. I find that although the learned Special Judge has observed "xxxx I find no reasonable grounds to call any witness under section 540, Cr.P.C.", nevertheless he did not give any reasons. Cross‑examination is not a mere formality but the purposes of it is to provide fair and reasonable opportunity to an accused not only to test the credibility of the witnesses against him but also to bring on record his defence through the prosecution witnesses.

6. I, therefore, uphold both the objections and allow this appeal. The case shall now go back to the learned Special Judge for re‑trial, who shall decide the same in accordance with law.

7. As I have ordered re‑trial of the case and the appellant is in the judicial lock‑up, he is admitted to bail in the sum of Rs.10,000 (Rs. ten thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Lahore, till the final decision of the case against him. S.A. Re‑trial ordered.