1989 PLP 3249 (MLD)

S.340--Counsel if busy in one Court should be waited for by the other Court with preference to superior Courts over subordinate Courts in this regard- Presiding Officers and parties' counsel should adjust schedules by mutual consultation to avoid unnecessary delay in progress of trials--[Practice and procedure]. Kh. Muhammad Sharif for Petitioners. Sh. Ihsan Ahmad for the State. Date of hearing: 29th March, 1989. Faryad Ali, with two others, through filing the instant revision, have prayed that the order, dated 24-2-1988, passed by Additional Sessions Judge, Lahore, refusing to recall Mst. Zahida Perveen and Mst. Hanifan Bibi P.Ws. for cross-examination by the petitioner's counsel, may be set aside as being improper and illegal and direction be made to the learned trial Court for resummoning the said witnesses for cross-examination. 2. The petitioners with few others are facing trial in the Court of Additional Sessions Judge, Lahore, under sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. On 30-1-1988 the statements of the afore-said prosecution witnesses were recorded on 30-1-1988. On that date, learned counsel for the petitioner was busy in this Court in connection, with Criminal Revision No.22 of 1988, and when he reached trial Court in later part of the day he learnt that statements of both Mst. Zahida Perveen and Mst. Hanifan Bibi P.Ws. have concluded. He applied to the Court the same day for recalling those witnesses for cross-examination on behalf of the petitioners. After hearing arguments on the application, the prayer was declined on 24-2-1988 vide impugned order with the remarks that the witnesses had attended the Court on number of occasions and were returned unexamined due to the non-availability of petitioners' counsel, who again failed to attend on 30-1-1988 for conducting the case, therefore, there was no reason for resummoning the aforesaid witnesses for cross-examination. Feeling aggrieved thereby the instant petition has been filed. 3. I have heard learned counsel for the petitioners as well as for the State and perused the record. It is true that the lady-witnesses attended the Court and were returned unexamined on 9-2-1987, 25-4-1987, 11-7-1987 and 27-10-1987 due to the absence of petitioners' counsel. It may be mentioned that their statements were not recorded on 22-11-1986, 14-1-1987 and 6-6-1987 as the learned Presiding Officer was either busy with some other cases or was on leave. Likewise on one date, i.e., 6-12-1987 the case was adjourned at the request of learned D.D.A., as the statement of Mst. Zahida Perveen P.W. recorded under section 164, Cr.P.C. was not available. It is, of course, duty of an Advocate to represent his party/client in Court on each date of hearing. It is common knowledge that an Advocate has to appear in different cases before different Courts on one date, therefore, a counsel if busy in one Court should be waited for by the other Court. Needless to say that superior Courts have to be given preference over the subordinate Courts. To avoid unnecessary delay in the progress of the trials, the Presiding Officers and the parties' counsel should adjust their schedules by mutual consultation. As for the case in hand, it is borne out from the record that the counsel for the petitioners was busy in this Court arguing Cr.R. No.25 of 1988, therefore, his absence from the trial Court in first part of the day was justifiiable. 4. Section 540, Cr.P.C. gives ample power to a Court to recall and re -examine a witness essential for just decision of a case. Needless to say that statement of a witness under the Evidence Act (Qanoon-c-Shahadat) is not effective and complete unless the opposite -party is afforded reasonable opportunity to do so and which it had declined are not availed of. The importance of cross-examination of a witness for the just decision of case as well as attitude of the Presiding Officers in affording opportunity for the purpose has been highlighted by a Division Bench of this Court in Ranjha's case (PLD 1962 Baghdad-ul-Jadid 12). "We consider that in the matter of cross-examination of witnesses in criminal trials, the Courts should treat the accused persons with indulgence and not deprive them of this valuable right on mere technical considerations. Cross-examination as a weapon gains its practical utility, when an accused person obtains the services of a lawyer believed to have the necessary skill to employ it for testing the worth of the witnesses. It is only then, that the opportunity can really be availed of usefully as a practical measure." In the light of these observations, I find that refusal on the part of trial Court to recall the aforementioned prosecution witnesses for cross-examination by the accused/petitioner's counsel would prejudice their case therefore recall of these witnesses is essential for the just decision of the case. Consequently I allow this petition, set aside the impugned order and direct that learned trial Court to recall Mst. Zahida Perveen and Mst. Hanifan Bibi P.Ws. for cross-examination by the learned counsel for the petitioners. It may be mentioned that the learned Court shall fix a date for the purpose in consultation with the petitioners their learned counsel and if on that date the counsel absents without any just cause then the Court shall close the evidence. The petition is disposed of accordingly. N.H.Q./F-124/L Petition allowed.