2016 PLP 114 (YLRN)

S. 540

Re-summoning of witness

Right of cross-examination

Accused was aggrieved of order passed by Trial Court whereby witness was not re-summoned for cross-examination

Validity

Right of cross-examination was not only indefeasible but also had been guaranteed by law and the same could not be snatched unless otherwise

Under a charge where quantum of sentence was death then mandatorily it remained duty of Trial Court to provide a defender to an accused who on account of his impecuniosity or due to other compulsive circumstances remained unable to engage his private counsel

Accused was not represented by any counsel before Trial Court and to avoid future complications and to provide fair chance to the petitioner to defend himself, order passed by Trial Court was set aside

Revision was allowed in circumstances. [Para. 6 of the judgment] 2010 SCMR 1437 and 2011 SCMR 735 ref. Iftikhar-ul-Haq Chaudhry, Additional Prosecutor General for the State. Major (R) Arshad Mehmood for the Complainant. ORDER MAZHAR IQBAL SIDHU, J.

Instant recension petition has been directed against the order dated 5.12.2013 passed by the learned Additional Sessions Judge, Pattoki whereby an application submitted by the petitioner to re-summon PWs, Riaz Ahmad, Muhammad Bashir, Shahbaz Ahmad and Rehmat Ali for further cross-examination on his behalf as at the time of their examination he was not represented by any learned counsel.

2. In support of instant application it has been argued that the right of cross-examination is indefeasible and in absence of cross-examination dispensation of justice is impossible and the petitioner himself has never relinquished it notwithstanding on behalf of the co-accused cross-examination has been conducted by the learned defence counsel. In support of his contentions learned counsel has relied upon 2010 SCMR 1437 (Head Note B), and 2011 SCMR 735 (Head Note B). Learned counsel has further submitted that the petitioner is facing a charge of capital sentence and the right of cross-examination cannot be taken away by any of the ways and in absence of the learned private counsel engaged on behalf of an accused the court is bound to provide a learned counsel on state expense to defend the accused because in its absence the definition of "due process of law" and "fair trial" do not complete. Even otherwise, it is a universal principle that nobody should be condemned unheard and it is also a saying of law that "give devil to his due". Thus has prayed for acceptance of instant revision petition.

3. Learned Additional Prosecutor General assisted by the learned counsel for the complainant has bitterly opposed the submissions that the petitioner wishes to throw the complainant and PWs in recrudescence as avokely resonated and ex mero motu rectitudely respondent No. 2 the complainant has intimated that the petitioner being influential has affrighted the complainant and other PWs to have answers of cross-examinational questioner but the judicial system discontinuance such like practice, the record proves that the petitioner cheeked by jowl with his co-accused during trial proceedings and he too has been represented by a learned counsel (Syed Tayyab Mehmood Jafari, Advocate) and now the petitioner scrambles to spoil the prosecution case but this practice is not only detestable but the law does not permit and if this practice is allowed then the system of criminal administration of justice would drift to devastation. Lastly it has been submitted that the petitioner contested for the relief of bail up to the Hon'ble Supreme of Pakistan then how it may be inferred that he was not represented during the trial to negate the power of attorney submitted on behalf of the petitioner has been managedly misplaced and this affair is utterly derogative.

4. Heard. Record perused.

5. During the course of arguments the Court went on a situation to requisition the judicial record which was summoned and thereafter during arguments certain unbecoming remarks were also described by the learned counsel for the petitioner vis- -vis the conduct of learned trial Court (Ch. Ghulam Rasool) learned Additional Sessions Judge, Pattoki, whereupon he was asked to appear personally for clarification of said remarks upon which on 28.4.2015 he appeared and was attended to in the chamber.

6. Exploration of record negates the filing of Vakalatnama by a learned defence counsel on behalf of the petitioner and so far as its misplacement is concerned, record shows reticence, therefore, about these two factors aptly avoided to pin down. Right of cross-examination is not only indefeasible but also has been guaranteed by law and the same cannot be snatched unless otherwise and under a charge where quantum of sentence is death then mandatorily it remains the duty of the learned trial Court to provide a defender to an accused who on account of his impecuniosity or due to other compulsive circumstances remained unable to engage his private counsel. Prima facie the Court after hearing learned counsel for the parties and going through the record has come to the conclusion that the petitioner was not represented by a learned counsel before the learned trial Court. In the circumstances, to avoid the futurely complications and to provide fair chance to the petitioner to defend himself instant revision petition is accepted, impugned order dated 5.12.2013 rendered by the learned trial Court is set aside.

7. Learned counsel for the petitioner has avowedly undertaken to cross-examine the witnesses without any excuse on a single date subject to their availability as a set of PWs. Therefore, keeping in view patience plight of the complainant party who had started hill journey since, 2010 only two consecutive opportunities are granted to the petitioner to cross-examine the PWs, directing to the learned trial Court to provide close and safest security to the complainant and PWs as complainant party is apprehensive of occurring of any untoward.

8. Before parting with this order it has been considered apropos to transfer the case from the learned trial Court where it is pending (Ch. Ghulam Rasool), Additional Sessions Judge, Pattoki as learned counsel for both the parties reciprocally have become consentees to it, therefore, file is remitted to the learned District and Sessions Judge, Kasur to entrust the instant case to any other learned Additional Sessions Judge barring the present arbiter. A copy of this order as well as judicial record be transmitted, in a trice, to the learned District and Sessions Judge, Kasur. MH/M-145/L Petition allowed.