2002 P Cr (PLP)

TASSADUQ HUSSAIN JILANI, J.‑‑‑ Through this petition the petitioner has challenged the order, dated 11‑3‑2002 passed by learned Judge, Accountability Court, Lahore vide which petitioner's application under section 540, of the Code of Criminal Procedure, read with Article 133(2) of Qanun‑e‑Shahadat Order, 1984 was dismissed.

2. Facts in brie are that the petitioner is facing trial in Ehtesab reference on the allegation inter alia that he accumulated, acquired and owned properties/assets in the name of his wife, sons, brothers, being (Benamidars) which are allegedly disproportionate to his known sources of income. The prosecution evidence is in progress. On 16‑2‑2001 the prosecution examined P.W.31 Mr. Hassan Ali Hamdani, Divisional Manager, Pakistan State Oil, Lahore. He produced the Company Record pertaining to three petrol pumps owned by the petitioner. During the course of cross‑examination petitioner's learned counsel cross‑examined the said witness about four other petrol pumps that petitioner had with a view to show that the petitioner used to receive rent of the land and commission for the sale of petrol from the Pakistan State Oil Corporation. The witness in answer to the said question replied:‑‑ "The records of the payment of commission and rent of all the petrol pumps are kept in the respective Legal and Finance Departments of the Company at Karachi and will be available with the Company and it can be produced by the company in the Court. In view of the afore‑referred reply of the said witness the petitioner moved an application for requisitioning of the said record and for recalling the said witness with a view to cross‑examine him with reference to the said record. This was dismissed by the learned Judge, Accountability Court, Lahore vide his order, dated 11‑3‑2002, on the grounds as a ides:‑‑ "It is also worth considering that the said documents have not been relied upon by the prosecution nor were brought on the been of reference and the adjournments which were granted were to produce original record of the certified copies of the documents which were on the reference and these adjournments were not granted for the purpose of producing the record of payment of commission or rent to the accused by the P.S.O. The request of the defence counsel as also mentioned above was declined earlier on the said matter when the witness was under the cross‑examination by him. The accused or anybody on his behalf can obtain the said record from the concerned office of the P.S.O. but in case any difficulty or hurdle comes on their way then the concerned Officers of the concerned departments of the P.S.O. can in the interest of justice be examined as C.W. at the request of the accused giving both the prosecution and the defence the right of cross‑examination."

3. Learned counsel for the petitioner has challenged the impugned order on the ground that once prosecution establishes reasonable case under section 14 of the Accountability Ordinance, 1999 a presumption is raised against the accused and the onus shifts on the accused to prove his innocence; that the production of record with regard to receipt of the rent and commission for the sale of petrol in the four other petrol pumps that petitioner owned is imperative to show that the petitioner had legal sources of income and the learned trial Court should have directed production of the relevant record. He added that under section 133(2), Qanun‑e‑Shahadat Order he had right to cross‑examine the witness about the facts which were relevant which the witness may not have stated in his examination‑in‑chief. In support of the submissions made he relied on Onkar Bnikaran v. Balmukund Javarchand AIR 1957 Madh. Bharat 135; Chandramani v. Binapani Dei AIR 1968 Orissa

17. Nusrat v. The State 1997. MLD 1358, Nazir Hussain v. Abdul Mannan 1998 MLD 678 and Asghari Khanum v. State PLD 1980 SC 14.

4. Learned Special Public Prosecutor, on the other hand, opposed the petition by submitting that P.W.31 Mr. Hassan Ali Hamdani is not the custodian of the record which the petitioner wanted to have it requisitioned, that the prosecution has no objection if the Custodian of the Record is summoned from Karachi to testify about the record in question as a Court‑witness which Would provide opportunity to, both the defence and the prosecution to cross‑examine him; that the defence has unnecessarily prolonged the matter; that P.W.31 was cross‑examined at considerable length and to re‑summon him only with record is not warranted in law. Relying on a judgment of the august supreme Court reported as Muhammad Shafi v. State PLD 1967 SC 167 he contended that the lengthy cross‑examination and undue latitude to a defence counsel in this regard has been deprecated by the august Supreme Court.

5. Heard.

6. Learned trial Court has dismissed petitioner's application seeking requisitioning of record and for recall of Mr. Hassan Ali Hamdani, P.W.31 primarily on the ground that the documents to which reference was made by petitioner's learned counsel (regarding payment of rent and commission to the petitioner) had not been relied upon by the prosecution, therefore, neither any question could be asked from him nor he could be asked to produce the said record. A bare reading of Article 133 sub‑Article (2) of Qanun‑e‑Shahadat Order would indicate, that the ambit scope of cross‑examination is not limited to the facts which a witness states in examination‑in‑chief. It reads as under:‑‑ "The examination and cross‑examination must relate to relevant facts but the cross‑examination need not be confined to the facts to which the witness testified on his examination‑in -chief." The right to cross‑examine is a valuable right granted by the Legislature to a party or an accused to challenge the veracity of a witness. In Onkar Bhikaram v. Balmukund AIR 1957 Madh. Bharat 135 it was held as under:‑‑ "Once a party, even by mistake comes to the witness‑box and swears and is examined about a document, he would become a witness and will be liable to be cross‑examined by his opponent. Under section 138, Evidence Act, cross‑examination cannot be confined to the facts to which the witness testified in his examination‑in‑chief. He can be cross‑examined as to the whole of the case. The Court's act in debarring the opponent of his right to cross -examine so, would amount to an illegal assumption of jurisdiction not vested in it. It is also an error of procedure in the course of the trial which is material as it is bound to affect the ultimate decision of the case and would amount to an illegality or material irregularity in the exercise of jurisdiction within the meaning of section 115(c), C.P.C."

7. In a criminal trial the accused is entitled to cross‑examine to adduce facts in support of his defence from the prosecution witness though the facts elicited may have no relation to the facts of which the witnesses have testified in their cross‑examination. The only pre condition is that it must relate to "relevant facts". And in the instant case the "relevant facts" would be any fact/circumstances relevant to the prosecution case or to the plea raised in defence. Prima facie it would be relevant to bring on record the legal sources of income if any the petitioner had. This issue becomes all the more crucial on account of shifting of burden of proof to the accused if the prosecution has made out a reasonable case in terms of section 14 of the NAB Ordinance, 1999. In the instant case obviously the prosecution was not relying on record pertaining to the receipt of the rent and commission for the petrol pumps in question. That ground, therefore, was not tenable for the learned trial Court to dismiss petitioner's application. Because the record regarding the land and commission given by the P.S.O. was a "relevant facts" with regard to defence plea.

8. So far as the argument that the record was being maintained at Karachi and P. W.31 is posted in Lahore is concerned suffice it to say that the record which P.W.31 had brought and which the prosecution had produced was the record which was being maintained at Head Office, Karachi. The said witness in his cross‑examination admitted (page 23 of this petition) that:‑‑ "It is correct that I moved a written application before the Court seeking adjournment for about 10 days to collect original record from the Head Office at Karachi. It is correct that the record was not with me and I had to collect it from the Head Office at Karachi. In the face of this candid admission we see no justifiable reason for the prosecution to object to resummoning of P.W.31 alongwith the record to which reference has been made in petitioner's application. However, there is no cavil to the dictum laid down by the august Supreme Court in the judgment to which reference was made by learned Special Public Prosecutor. It is for the learned trial Court to ensure that no party is permitted to prolong the trial unnecessarily.

9. For what has been discussed above, we allow this petition, set aside the impugned order and direct that P.W.31 shall be recalled alongwith the record, if available, in the Head Office and the learned counsel for the accused shall be allowed to cross‑examine him. It is, however, made clear that the accused shall not be permitted to unnecessarily prolong the cross‑examination and the learned trial Court shall strictly follow the ratio laid down in Muhammad Shafi v. State PLD 1967 SC

167. H.B.T./Z‑108/L Petition allowed.