1997 PLP 1697 (MLD)

3. The facts necessary for disposal of the instant appeal are that on 27‑8‑1991 at about 3‑45 a.m. Sub‑Inspector of Police Mr. Fida Hussain Lahori, the complainant lodged an F.I.R. at Mehrabpur Police Station stating therein that on 26‑8‑1991 he alongwith his subordinate staff at about 10‑30 p.m. left the police station on foot for the purpose of patrolling the area. This had been done under Roznamcha Entry No.

19. It has been alleged by the complainant that while the police party was patrolling they saw in the moon light at about 2‑15 a.m. (27‑8‑1991) 3 armed men coming towards the police. Upon reaching near the police they opened fire at the police party with intention to kill them when they were asked by the police to disclose their identity. The police also cross-fired in their defence and the firing continued for about 10/15 minutes. Thereafter, the police encircled them and caught hold of one person armed with the gun, who was the appellant, however, the other two accused succeeded in fleeing. The apprehended person was identified by Police Constable Qasim to be the appellant and during interrogation it is alleged that the appellant had also disclosed the names of the persons who had absconded. The Station House Officer thereafter prepared Mashirnama of seizure and after investigation challaned the appellant before the Sub‑Divisional Magistrate, Kandiaro, who sent the case to the Sessions Court. It is alleged that the two persons who absconded were declared as proclaimed offenders. The appellant was charged to which he pleaded not guilty. During trial the prosecution examined the Mashir and eye‑witnesses Head Constable Ghulam Mujtaba and complainant Fida Hussain, Station House Officer, who also produced the Mashirnama of arrest and recovery.

4. In convicting the appellant, the learned Additional Sessions Judge was swayed by the fact that the version of the complainant and the eye‑witnesses had gone unrebutted and unchallenged as they had not been cross‑examined by the accused despite opportunity. In doing so the learned Additional District Judge observed as follows:‑‑

"It is well-settled law that the fact deposed in examination‑in‑chief was not questioned in cross‑examination by the other party is presumed that the other party has accepted .the facts deposed in examination‑in‑chief."

5. I have heard the learned counsel for the both sides and perused the testimonies and other documents available on record. It is correct that the accused was offered an opportunity to cross‑examine both the prosecution witnesses i.e. Station House Officer Fida Hussain, the complainant and Head Constable Ghulam Mujtaba and that he failed to controvert either of them or discredit their testimonies. However, in my humble view in cases where an accused is un-represented the principle that unrebutted testimonies are presumed to be the correct statements of fact is not applicable. It is in view of this that I feel that the learned Additional Sessions Judge had materially erred.

6. Section 340 of the Code of Criminal Procedure statutorily recognizes the right of an accused to be defended. The relevant provision may be reproduced for convenience as under:‑‑ "Section 340(1).‑‑‑Any person, accused of an offence before a criminal Court or against whom proceedings are instituted under this Code in any Court, may of right be defended by a pleader. " The question that warrants consideration is whether in the instant case the failure of the trial Judge to cross‑examine the prosecution witnesses himself when the accused appellant was un-represented would violate either section 340 of the Code of Criminal Procedure, 1898, or any other provision of law. It is of course not the case of the appellant that he himself engaged a counsel who was denied proper opportunity by the learned Additional Sessions Judge. In fact, the pertinent question is as to how a criminal trial Court should construe lack of legal representation on part of an accused who perhaps for some reason is not able to engage a counsel. In cases pertaining to capital punishment the answer lies in the High Court Rules and Orders, Volume III, Chapter 24, Rule 1, and the Federal Capital and Sindh Courts Criminal Circulars issued by the Sindh Government, Chapter VII, paragraph 6 which provide for a pauper accused a counsel at State expense. No doubt in matters other than entailing a capital punishment no such right is explicitly available by statute or rules to the accused to secure legal representation at State expenses, however, I feel in such cases it then becomes the duty of the trial Judge himself to put up a cross on behalf of the accused. In this respect if there is any authority needed it is the case of Nazir Hussain v. Muhammad Yaqub KLR 1986 Cr.C.

100. It would appear to me that till such time the Court puts up such a cross‑examination on behalf of an un-represented accused it would not discharge its duty embodied in section 340 of the Code of Criminal Procedure. I am aware of the fact that the terms of section 340 of the Code of Criminal Procedure provide stipulation in terms of right of the accused to be defended and not the duty of the Court as such. However, wherever right of the accused in criminal trials is construed the corollary by and large results in the form of a duty placed upon the Court. It is not section 340 of the Code of Criminal Procedure alone but also Article 161 of the Qanun‑e- Shahadat which ordains a trial Judge to discover or obtain proper proof of relevant facts and in doing so authorizes him to put questions to witnesses. In the case of Abdul Rahim and others v. U.B.L. and others unreported being 1st Appeal No.26 of 1995 to 1st Appeal No.61 of 1995 from the Hyderabad Bench) a Division Bench of this Court comprising Ghulam Hyder Lakho, J., and myself (the judgment was written by me) has emphasised the need of the Courts in Pakistan operating under the written Constitution to discharge a higher duty to do complete justice. In the present circumstances such higher duty could only have been performed if the Court had scrutinized the testimonies by confronting and cross‑examining witnesses to ascertain the truth. Such duty exists even when the accused is represented through competent counsel, while the vigour of such duty can well be appreciated in cases where the accused is un-represented.

7. Our own Supreme Court has categorically 'deprecated the practice of trial Court to accept unrebutted testimonies of prosecution witnesses in cases of unrepresented accused. In this regard the case of S. Muhammad Alam Shah v. The State PLD 1987 SC 250 can be cited as authority wherein Zaffar Hussain Mirza, J.) (as he then was) in a Full Bench has been pleased to observe as under:‑‑ "The Courts below seems to have been greatly influenced in arriving at their conclusions by the fact that the accused did not direct any cross-examination to challenge the testimony of these witnesses. They have ignore, to take into consideration that the accused was unrepresented in the trial Court. We cannot approve of such an approach to the appreciation of evidence in criminal cases. It is the obligation of the Court to take into consideration all matters placed before it in a trial before arrival at the conclusion whether a fact is proved or not. The proof of a fact depends not upon the accuracy of the statement but upon the probability of it having existed. " (at page 254). Even if in the present case had the accused himself cross‑examined the witnesses that would not have been a substitute to a cross‑examination by a counsel (see Syed Saeed Muhammad Shah v. The State 1993 SCMR 550). Accordingly, the duty 9f the Court itself to make an attempt in cases where the accused is unrepresented and does not conduct a cross‑examination to extract the truth from the material available cannot but be over‑emphasised.

8. The concept of right to counsel or phrased differently, the right to be represented by a counsel covers the following:‑‑ "(a) the right of an accused or litigant to have access to or to engage a lawyer who in turn is allowed full opportunity to contest and present the case of his client; (b) the right of an accused to claim appointment of a competent counsel on State expenses in situations prescribed by law e.g. capital punishment; (c) the duty of the Court to apply the correct law and decide accordingly, notwithstanding that the accused/litigant is unrepresented by counsel. "

9. This concept of right of counsel has not been explicitly enshrined in the 1973 Constitution as a fundamental right, however, it has been recognised by our superior Courts as a right existing under the principles of natural justice (see Muhammad Saeed Ahmed Khan v. Secretary to Government of Punjab Housing and Physical Planning Department PLD 1983 Lah. 206 and also as a Constitutional right embodied in the due process clause contained in Article 4 of the Constitution (see Aslam Ali Shah v. Collector of Central Excise and Land Customs 1983 PLC (C.S.) 498). Since this right of counsel has been recognized so its alleged violation becomes a justifiable issue over which the Courts can exercise judicial review. The concept of judicial review is not static. In a recent case reported as Messrs Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources and 2 others 1995 MLD 15 a pragmatic definition is offered to this concept of judicial review as under:‑‑

"As an ideation judicial review has always been a dynamic concept and, to quote F. W. Maitland, 'each generation has enormous power to shape its own laws', its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concepts." (see page 28). This aspect of volatility and growth of judicial review is also shared by the concept of due process enshrined in Articles 3 and 4 of the Constitution. The concept of due process is also shaped with the passage of time and brings into its fold newer subjects while its armoury is also enriched with bolder concepts. A practical example of this is the principles of natural justice which at one point of time were viewed only as general principles, however, after Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 the principles of natural justice have been equated with principles of law. In my humble opinion the principles of natural justice would not have to be considered as a Constitutional concept enshrined in Articles 3 and 4 of the Constitution, which contain the due process clause. Similarly, the principle of legitimate expectation has also found recent resurgence, especially after Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, whereafter the said principle of legitimate expectation would also have to be seen as a Constitutional principle/concept entrenched in the due process clause contained in Articles 3 and 4 of the Constitution: Another illustration in this regard is a person's unhindered right of appeal (see Abdul Rahim and others v. U.B.L. supra). The position in relation to the right of counsel is similar as recognised in Aslam Ali Shah v. Collector of Central Excise (supra).

10. In the analysis as aforesaid an attempt has been made to underscore the relationship between basic right found in general principles e.g. natural justice, legitimate expectation, right of counsel or even an unhindered right of appeal, and the due process guaranteed under the Constitution. The contemporary resurgence of natural law in the form of natural rights expounded by Dworkin (see Taking right seriously) and Finnis (see 'Natural Law and Natural Rights', Chapter. 8) is also to such effect. Dias while commenting upon Dworkin and Finnis has also confirmed that basic and natural rights are to be found in guarantees pertaining to due process (see Dias on 'Jurisprudence' , 1985 Edn., p.502).

11. From the above it is clear that the trial stood vitiated due to breach of appellant's right of counsel as explained above. The question now before me is as to what should be the result. Should the matter be remanded for a fresh trial or should the appellant be acquitted altogether. In this regard I shall venture to reproduce certain observations that I had passed in Saeed Farooq v. The State 1996 MLD 434:‑‑ "In the normal course of events a remand order is only to be passed in highly exceptional circumstances since an order of remand exposes litigant to yet another round of cumbersome proceedings. However, the instant set of proceedings before me are of a highly exceptional nature and would warrant a remand order purely on the ground that the trial Judge or even the learned counsel for either sides have not been able to disclose the capacity in which the applicant has committed the alleged offences. I may point out at this stage that where cases are brought either of civil, criminal or fiscal nature against individuals and citizens of the State they should be done so after thorough investigation and after entertaining proper evidence in accordance with prescribed procedure. There has been a growing tendency to remand cases where the functionaries of the State through their own mistakes institute cases against individuals without basis, evidence and upon conjectures. A remand order in such cases is highly objectionable and results in escalated harassment to individuals who are penalised to face a further set of cumbersome proceedings for no fault of their own. Also where during the course of investigation, scrutiny or examination the State officials invite replies by citizens and individuals against whom they are proceeding and those citizens and individuals comply with the requirements and submit whatsoever is required from them, a further remand order would be completely out of place and would constitute an abuse of process of Court. (See page 443). The Supreme Court in a recent case Chairman, WAPDA, Lahore v. Gulbat Khan 1996 SCMR 230 has also expressed pertinent views on remand of a case which are to the following effect:‑‑ "Remand of a case is not a routine matter nor it should be adopted as a matter of course to allow a party or an authority to fill in the lacuna or to improve upon the case. " (see page 234) In the present context I feel that if the Judge comes to the conclusion that right of counsel has been denied to the accused he should proceed to examine and scrutinize the evidence on record. In case he comes to the conclusion that there may be some reasonable evidence against the accused he should remand the case for fresh trial. However, if the Judge comes to the conclusion that no reasonable evidence so exists against the accused he should p proceed to acquit the accused as a remand order in such a case shall be an abuse of process of Court subjecting the accused to another round of cumbersome proceedings. Since in the present case I have already come to the conclusion that the accused's right of counsel has been violated, I shall now proceed to consider the case on merits to see whether the prosecution has any reasonable evidence against the appellant.

12. In the present case apart from the glaring defect where the right of counsel in the context as elaborated above (see paras. 8(c) and 9 above) has been denied to the appellant, the prosecution version lacks independent corroboration and also suffers from many infirmities. According to the prosecution witnesses they saw the appellant and two others at 2‑15 a.m. carrying weapons from a distance across the bridge. The story appears to be quite fabricated as 2‑15 a.m. would be a time of pitch darkness and there would be no question of identifying the belonging of persons walking at some distance. In the circumstances even identification in moon light from a considerable distance across shall be too weak and flimsy to warrant any reliable probative value. Equally incredible is the version that both sides cross‑fired for 15 minutes as there has been no report of injury etc. while it is not the case that the firing took place behind any fortification or Morcha. Eventually, the prosecution witnesses have deposed that the police party encircled all the three persons. Escape of two of them, when admittedly the police party was more than twice in number, creates a reasonable doubt in the prosecution version. Lastly both the prosecution witnesses have consistently deposed that the police party left Police Station Mehrabpur for patrolling and Nakabandi vide Entry No.19 but this entry has not been produced. This should have been done to show that the police party had actually left the police station at that hour to perform patrolling and Nakabandi duty (see Muhammad Azeem v. The State 1977 PCr.LJ (Kar.) 671 (S.B.). (Sher Muhammad v. The State) unreported D. B. judgment, dated 8‑11‑1995 comprising of Hussain Adil Khatri, J. and myself (the judgment was authored by me); Muhammad Anwar v. The State unreported D.B. judgment dated 22‑11‑1995. (Both unreported judgments are from Hyderabad Bench).

13. In view of the above the appellant is acquitted on grounds of benefit of doubt and the appeal is allowed. N. H. Q./W‑11/K Appeal allowed.