2006 PLP 327 (MLD)
MUHAMMAD NASIR — Petitioner Versus THE STATE — Respondent
| Citation | 2006 PLP 327 (MLD) |
| Forum / Court | Karachi |
| Bench Members | N/A |
| Parties | MUHAMMAD NASIR — Petitioner Versus THE STATE — Respondent |
| Primary Law | (a) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2006 PLP 327 (MLD)?
This judgment primarily cites: (a) Criminal Procedure Code (V of 1898), (b) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 PLP 327 (MLD)?
The case was heard and decided by the Karachi bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2006 PLP 327 (MLD) (MUHAMMAD NASIR — Petitioner Versus THE STATE — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----S.540---Power to summon material witness etc.---Recalling of prosecution witness for cross-examination---Intent and import---Opportunity to cross-examine a witnesses contemplated by law is not an empty formality but a valuable right and best method for ascertaining forensic truth and it must be real, fair and reasonable---Accused being not a trained person id legal procedure could not be expected to cross-examine the prosecution witness in the absence of his Advocate and he cannot be penalized for the absence of his Advocate who had chosen to remain absent on the date when the case proceeded against him---Fear of accused that if the witnesses against him were not subjected to cross-examination, he might be straightaway convicted for putting up no defence, could not be ill-founded.
- Intikhab Ahmed for Petitioner.
- Contention of the learned counsel is that the fact that neither the Advocate could appear nor any adjournment application was sent by him, goes to show that the applicant could not contact his Advocate. While the learned counsel conceded that the responsibility vests squarely in the defence and their counsel to be vigilant in the proceedings, and not to take undue liberties in the proceedings before the Court, he, at the same time, stated that facts beyond the control of the parties as in the instant case, required to be considered and call for a sympathetic consideration as valuable rights of the applicant are involved which may ultimately culminate in his conviction if opportunity to cross-examination of the witnesses is not afforded to him. He has placed reliance on the case of Altai Hussain Shamim v. The State (PLD 1992 Kar. 91), Khizar Hayat v. The State (2001 YLR 19), Najmul Hassan v. The State (2002 MLD 477) and Abdul Raoof v. The State (PLD 2001 Lahore 463).
- "7. The opportunity to cross-examine a witness contemplated by the law must be real, fair and reasonable. It is not an empty formality but a valuable right and a best method for ascertaining forensic truth. The applicant who is not a trained person in legal procedure was not expected to cross-examine the prosecution witness in the absence of his Advocate. It may be noted that the applicant cannot be penalized for the absence of his Advocates who had chosen to remain absent on the date when the case proceeded against him. The applicant fears and his fears are not ill-founded that if the witnesses against him are not subjected to cross-examination, he may be straightaway convicted for putting up no defence."
Headnotes / Summary
S.540
Penal Code (XLV of 1860), S.302
Application for recalling of witnesses was dismissed by trial Court
Failure of the defence counsel to appear in the Court on the date when the case was fixed for evidence had led to the filing of an application under S.540, Cr.P.C. by the accused for recalling of the witnesses examined on that date
Said application had been made after the examination of witnesses was concluded and the case was fixed for recording of the statement of
S.540
Power to summon material witness etc.
Recalling of prosecution witness for cross-examination
Opportunity to cross-examine a witnesses contemplated by law is not an empty formality but a valuable right and best method for ascertaining forensic truth and it must be real, fair and reasonable
Accused being not a trained person id legal procedure could not be expected to cross-examine the prosecution witness in the absence of his Advocate and he cannot be penalized for the absence of his Advocate who had chosen to remain absent on the date when the case proceeded against him
Fear of accused that if the witnesses against him were not subjected to cross-examination, he might be straightaway convicted for putting up no defence, could not be ill-founded.
Judgment & Decree
ZIA PERWAZ, J.
This revision is directed against the impugned order of the learned Sessions Judge, Karachi South in SC No.499 of 2004 whereby the application for recalling of witnesses was dismissed in view of earlier order dated 16-4-2005 passed by the learned Court on an application moved under section 540, Cr.P.C. Contention of the learned counsel is that the fact that neither the Advocate could appear nor any adjournment application was sent by him, goes to show that the applicant could not contact his Advocate. While the learned counsel conceded that the responsibility vests squarely in the defence and their counsel to be vigilant in the proceedings, and not to take undue liberties in the proceedings before the Court, he, at the same time, stated that facts beyond the control of the parties as in the instant case, required to be considered and call for a sympathetic consideration as valuable rights of the applicant are involved which may ultimately culminate in his conviction if opportunity to cross-examination of the witnesses is not afforded to him. He has placed reliance on the case of Altai Hussain Shamim v. The State (PLD 1992 Kar. 91), Khizar Hayat v. The State (2001 YLR 19), Najmul Hassan v. The State (2002 MLD 477) and Abdul Raoof v. The State (PLD 2001 Lahore 463). Ms. Shahida Jatoi, learned counsel for the State, has no objection if an opportunity is provided to the defence for cross-examination of the witnesses. At present the case is stated to be fixed for recording of the statement of accused under section 342, Cr.P.C. after prosecution closed its side. It appears that the application has been made after the examination of the witnesses was concluded. While disposing of the case of Altai Hussain Shamim (supra), a learned single Judge of this Court observed as under:-- "
7. The opportunity to cross-examine a witness contemplated by the law must be real, fair and reasonable. It is not an empty formality but a valuable right and a best method for ascertaining forensic truth. The applicant who is not a trained person in legal procedure was not expected to cross-examine the prosecution witness in the absence of his Advocate. It may be noted that the applicant cannot be penalized for the absence of his Advocates who had chosen to remain absent on the date when the case proceeded against him. The applicant fears and his fears are not ill-founded that if the witnesses against him are not subjected to cross-examination, he may be straightaway convicted for putting up no defence." The same view finds support in the subsequence cases of Khizar Hayat, Najamul Hassan and Abdul Raoof (supra). For the foregoing reasons, this application is allowed. The impugned Order is set aside. The applicant may be afforded opportunity for cross-examining the witnesses of the prosecution after re-summoning them on the next date of hearing. N.H.Q./M-302/K??????????????????????????????????????????????????????????????????????????????? Petition accepted.