2001 PLP 19 (YLR)

‑‑‑Ss. 540 & 439‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑ Control of Narcotic Substances Act (XXV of 1997), S.9(b)‑‑‑Qanun‑e‑Shahadat .(10 of 1984), Art. 133‑‑‑Recalling of prosecution witnesses for cross‑examination‑‑‑Prosecution recorded entire evidence of as many as five witnesses in support of its case and its evidence was closed and statement of the accused: was to be recorded under S.342, Cr.P.C.‑‑‑Out of five prosecution witnesses, three were cross‑examined by the counsel of the accused and two of them were cross- examined by the accused himself‑‑‑Accused filed application seeking recalling of two witnesses who were cross‑examined by him so as to provide an opportunity to his counsel to cross‑examine the said witnesses to the interest of justice‑‑‑Said application having been dismissed, by the Trial Court, the accused had filed revision against order of Trial Court‑‑‑Validity‑‑‑Said two witnesses were ‑not cross‑examined by counsel for the accused despite counsel was present in the Court at relevant time‑‑‑Such unusual conduct of counsel of the accused was due to financial difficulties of the accused at relevant time‑‑‑Lack of cordiality of relationship between the accused and his counsel at the time of recording of the statements of prosecution witnesses, being not without any background, it was proper for the Trial Court to allow the application. of the accused and to allow the counsel of the accused to cross- examine said witnesses so as to promote the interest of justice‑‑‑High Court set aside order of the Trial Court with direction to call said witnesses and to provide at least one opportunity to counsel of the accused to cross‑examine the said witnesses. (b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 439‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Object of ‑‑‑Revisional jurisdiction of High Court is meant for examining the record of the Courts below for their correctness, legality and even propriety. Ahmad Usman Khan for Petitioner. Sheikh Muhammad Raheem for the State. Date of hearing: 7th May, 2001. The necessary facts giving rise to the present revision petition are that the petitioner is an accused person of case F.I.R. No. 408 registered at Police .Station Fateh Pur, District Layyah on 31‑10‑1998 for offences under Articles 3/4 of the. Prohibition (Enforcement of Hudd) Order, 1979 read, with section 9‑B of the Control of Narcotic Substances Ordinance, 1996 in respect of an alleged recovery of Charas weighing 400 grams from the petitioner's custody. After completion of investigation a challan was submitted before the Court of competent jurisdiction and presently the trial of the said criminal case is pending before the learned Additional Sessions Judge‑I, Layyah Camp at Karor. The present stage of the said trial is that the entire evidence of the prosecution has been recorded, the prosecution's evidence has been closed and now a statement of the present petitioner under section 342, Cr.P.C. is to be recorded. During the trial the prosecution had produced as many as five witnesses in support of its case. The record of this case shows that P.W.1 Umer Hayat, F.C, P.W.2 Muhammad Afzal, H.C. and P.W.5 Muhammad Iqbal, S.‑I. had been cross‑examined by the petitioner's learned counsel whereas P.W.3 Sajjad Hussain, F.C. and P.W.4 Saif Ullah Khan, S.‑I. had been cross‑examined by the petitioner himself. On 9‑4‑2001 the petitioner had submitted an application before the learned trial Court seeking recalling of P.Ws.3 and 4 so as to provide an opportunity to the learned counsel for the petitioner to cross‑examine them in the interests of justice. That application of the petitioner was, however, dismissed by the learned trial Court vide order dated 17‑4‑2001. Hence, the present petition before this Court.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that three out of the five witnesses produced by the prosecution had indeed been cross‑examined by the petitioner's learned counsel whereas P.W.3 and P.W. 4 had been cross‑examined by the petitioner himself. The record of this case shows that at the time of recording of the statements of P.W.3 and P.W.4 the petitioner's learned counsel was personally present before the learned trial Court but he had refused to cross‑examine the said witnesses on behalf of the petitioner leaving the petitioner no other option but to cross-examine the said witnesses himself. It is also borne out from the record that P.W.5 Muhammad Iqbal, S.‑I. had once again been cross‑examined by the same learned counsel for the petitioner. In these circumstances this Court has entertained some doubts about healthy, proper and satisfactory relationship between the petitioner and his learned counsel before the learned trial Court. It is unusual that despite his presence in the Court the learned counsel for the petitioner had failed to cross‑examine the said witnesses himself. It is, thus, apparent that the failure of the petitioner to get the said witnesses cross-examined by his learned counsel was neither intentional nor the same had been brought about in circumstances conducive to the interests of justice. It is obvious that the said two witnesses were critically important to the prosecution's case against the present petitioner and, thus, it was inconceivable that the petitioner would volunteer to cross-examine them personally whereas opting for cross‑examination of the other witnesses by his learned counsel: The reason given by the petitioner in his application dated 9‑4‑2001 seeking recalling of the said witnesses for their cross‑examination by his learned counsel refers to some financial difficulties being faced by the petitioner at the relevant time. Thus, lack of cordiality of relationship between the petitioner and his learned counsel at the time of recording of the statements of P.W.3 and P.W.4 is not something which is without any background. Revisional jurisdiction of this Court is meant for examining the record of the Courts below for their correctness, legality and even propriety. After going through the record of the learned Court below in the present case I have felt that it would have been proper for the learned trial Court to allow the application of the petitioner, dated 9‑4‑2001 and to allow the petitioner's learned counsel to cross‑examine P.W.3 and P.W.4 so as to promote the interests of justice. This revision petition is, therefore, allowed, the order, dated 17‑4‑2001 passed by the learned Additional Sessions Judge‑I, Layyah Camp at Karor is set aside, the application of the petitioner, dated 9‑4‑2001 is hereby allowed and the learned trial Court is directed to recall P.Ws.3 and 4 and to provide at least one opportunity to the petitioner's learned counsel to cross‑examine the said witnesses. This petition is disposed of in these terms. H.B.T./K‑72/L Revision allowed.