2013 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

This appeal is directed against the Judgment dated 7-7-2012 passed by the learned Ist Assistant Sessions Judge, Sukkur in Sessions Case No.474 of 2011 Re-The State v. Waqar and another, arising out of Crime No.304 of 2011 of Police Station, Pano Akil registered for offences under sections 324, 353 and 34, P.P.C. whereby appellants Waqar and Muhammad Hassan alias Aslam both by caste Shaikh were convicted and sentenced under section 324, 34, P.P.C. for five years' R.I. and for offence under section 353, for three months' R.I. Both the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants/accused.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 7-10-2011 SIP Rafiq Ahmed of Police Station, Pano Akil left the Police Station along with his subordinate staff namely PCs Naseer Ahmed, Hazaro Khan and Bahar Ali in Government Vehicle vide Roznamcha Entry No.15-1100 for patrolling duty. While patrolling at various places a Nakabandi was held at Pir Wah Bridge. It is alleged that at 12-35 p.m. one Motorcycle appeared at the bank of canal, on which two persons were sitting. It was stopped by the police officials. As soon as the Motorcycle was stopped, the accused persons started firing upon the police party, the police party also fired in self-defence. The firing continued for five minutes. Thereafter, it is alleged that the police caught hold of both the accused persons, who were armed with TT pistols. After arrest, TT pistols were secured from their possession. As the private mashirs were not available there, SIP Rafiq Ahmed made PCs Naseer Ahmed and Hazaro Khan as mashirs of arrest and recovery. Both the accused were enquired about their names, one accused disclosed his name as Waqar son of Qalander Bux Shaikh, resident of village Sadiq Taluka Pano Akil and he admitted that he had no license for the pistol recovered from his possession, which contained 2 live bullets while another accused told his name as Muhammad Hussain alias Aslam son of Abdul Rasheed Shaikh resident of village Inayat, from his personal search a .30-bore pistol containing four live bullets was secured for which, he disclosed that he had no licence. Regarding motorcycle both the accused disclosed that they had no documents of the motorcycle. Mashirnama of arrest and recovery was prepared in presence of mashirs. Accused and case property were brought at the Police Station, where F.I.R. on behalf of the State was lodged against both the accused as stated above and two other separate F.I.Rs. under section 13(d), A.O. were also registered against the accused on behalf of the State at the same Police Station.

3. Thereafter copies of the F.I.R., custody of the accused and case property were handed over to ASI Quwant Ali for investigation. On the conclusion of the investigation challan was submitted against the accused under the above-referred sections. Case was sent-up to the Court of Session, it was transferred to the Court of learned Ist Additional Sessions Judge, Sukkur for disposal according to law.

4. Formal charge against the appellants/accused Waqar was framed as Exh.2. Accused met the charge with denial.

5. In order to prove its case, the prosecution examined Complainant SIP Rafiq Ahmed at Exh.3. He produced mashirnama of arrest and recovery, F.I.R. and attested copy of Roznamcha Entry at Exhs.3-A to D. LPC Quwant Ali was examined at Exh.4. Mashir HC Naseer Ahmed at Exh.5. It is pertinent to mention here that accused were unrepresented during trial. Thereafter, prosecution side was closed.

6. Statements of both the appellants under section 342, Cr.P.C. were recorded in which, they claimed false implication in this case and denied the prosecution allegations, raising plea of innocence.

7. After hearing Miss. Ishrat Gul ADPP and accused in person, trial Court recorded the conviction and sentence against the appellants/accused as stated above. Said judgment has been impugned before this Court.

8. Mr. Najamuddin Dharejo, learned counsel for the appellants/accused argued that a fair opportunity was not provided to the appellants to engage defence counsel. Both the appellants did not cross-examine all the three witnesses. The trial Court failed to discharge the primarily duty to discover truth. He submitted that the case may be remanded back to the trial Court for providing a fair opportunity to cross-examine the witnesses. In support of above contentions, he relied upon the case-law reported as Abdul Ghafoor v. The State (2011 SCMR 23).

9. Syed Sardar Ali Shah, learned APG appearing for the State in all fairness admitted that since prosecution witnesses were not cross-examined, the State would not oppose prayer that case may be remanded back to trial Court to provide a fair opportunity to appellants to cross-examine witnesses.

10. I am persuaded to hold that it is primary duty of the Court seized of a matter to ensure that truth is discovered. In this case, prosecution witnesses were not cross-examined on account of non-representation by defence Counsel before the trial Court. The evidence so recorded could be of no significance and conviction cannot be safely based on the basis of such evidence, unless the credibility of witnesses is tested on the touchstone of cross-examination. Injustice is likely to occur in a case where cross-examination on prosecution witnesses was not conducted by Advocate for accused. Even the cross-examination conducted by accused himself has not been considered to be substitute of cross-examination conducted by a counsel. Learned Assistant Sessions Judge unfortunately did not adopt said course and asked accused to cross-examine experienced police witnesses for which obviously accused had not requisite expertise. Procedure adopted by trial Court is reflective of miscarriage of justice. The right of cross-examination has from times immorial been held, to be particularly in criminal cases a valuable right to accused. In appropriate cases a Judge would not be acting strictly according to rules of judicial practice if he were to take the work of examining and cross-examining witnesses in his own hand, yet it is his duty and privilege to put questions to witnesses in order to discover truth. Judicial officer should use his greater experience to cross-examine witnesses where he sees that accused is unrepresented. Article 10-A inserted in the Constitution (Eighteenth Amendment) Act X of 2010 provides as under:-- "10-A. Right to fair trial.

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process".

11. Learned counsel for the appellants has rightly relied upon the case of Abdul Ghafoor (supra), in which honourable Supreme Court has observed as under:-- "With immense respect to the learned Judges of the High Court, we are persuaded to hold that it is the primary responsibility of the court seized of a matter to ensure that the truth is discovered and the accused are brought to justice. If the learned trial Court found that the counsel engaged by the appellant had sought too many adjournments, even then he was not appearing, the court could either have directed that a defence counsel be provided to the appellant at State expense or could have given last opportunity to the appellant to make alternate arrangements failing which the court would proceed to decide the matter. This course was not adopted by the learned trial Court and instead on 2-12-1999 gave a total surprise to the appellant by asking him to cross-examine those witnesses for which obviously neither the appellant had the requisite expertise nor he was prepared to do so. In these circumstances and in view of the fair concession given by the State, we find that the procedure adopted by the learned trial Court is reflective of miscarriage of justice and the appellant be provided one opportunity to have the afore-referred witnesses cross-examined. Consequently, this appeal succeeds on this short ground. The impugned judgment of the learned High Court dated 19-3-2000 and that of the learned trial Court dated 30-5-2000 are set aside. The case is remitted to District and Sessions Judge, Rawalpindi who shall either proceed with the matter himself or entrust the same to Additional District and Sessions Judge. The appellant shall be treated as under trial prisoner. He shall be given one opportunity to cross-examine the two witnesses referred to in paragraph 6 above and thereafter the court shall decide the matter within 15 days of the said opportunity given. The parties are directed to appear or arrange representation before the District Judge for 20-5-2010 who shall proceed with the matter in terms of this order".

12. The ratio in above cited case-law is that a fair opportunity should be granted to accused to engage an advocate for cross-examination of prosecution witnesses.

13. Having considered the case of appellants Waqar and Muhammad Hassan, I am of the considered view that appellants should be provided time to engage a counsel of their own choice. If the appellants fail to engage a counsel, the trial Court would be at liberty to proceed with trial in the light of above observations/guidelines in accordance with law.

14. For my above-stated detailed reasons, appeal is allowed conviction and sentence recorded by learned Ist Assistant Sessions Judge, Sukkur vide judgment dated 7-7-2012 are set aside. Appellants were on bail during trial, they shall be treated as such. Case is remanded back to trial Court. Appellants shall be given a fair opportunity to engage advocate for cross-examination of prosecution witnesses. Trial Court is directed to conclude the trial within 2 months. MWA/W-16/K Case remanded.