P L D 2011 Karachi 201 (PLP)

IMAM BUX BALOCH, J.

Through this Revision Application, the applicant called in question Order dated 11-11-2010 passed by learned Accountability Court No. II, Sindh, Karachi in Reference No.44 of 2007 whereby the learned Accountability Court imposed expenses of Rs.20,000 for summoning P.W. Aftab Ahmed Khan, who has to come from Rawalpindi as the counsel for the petitioner had raised doubts on the qualification of said P.W. and had prayed that after verification of Expert Certificates, he would further cross-examine the witness. Learned counsel for the petitioner has argued that order passed by the learned Trial Court is without jurisdiction and in excess of the powers conferred by the law. He further argued that since last 3 years the petitioner is facing agony of trial of the criminal case and as the petitioner has been retired from service therefore, it is difficult for him to arrange for the expenses of the witness. He further argued that under section 244(3) Cr.P.C. the Magistrate may before summoning any witness on such application, require that his reasonable expenses incurred in attending for the purposes of the trial, be deposited in Court. However, if the offence is punishable with imprisonment exceeding six months, the accused is not required to deposit any such expenses. It is further contended that fair trial is the right of every citizen of this country as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan. However, learned counsel has relied upon the case of Dr. Manzoor Hussain and others v. The State (1969 PCr.LJ 336) and case of United States Shipping Board v. The Ship "St. Albans" (AIR 1931 Privy Council 189). He lastly argued that order of the learned Trial Court regarding imposition of expenses of the witness is not legal and reasonable and may be set aside. On the other hand learned D.P.-G contended that the witness is serving as Instructor in Sihala Police College Punjab and is an expert in Forensic Science. The petitioner has no right to demand degree or certificate of an expert who is teaching in a Police College as before his appointment as an Expert in Forensic Science all the legal formalities had been completed. Learned D.P.-G further contended that as the petitioner himself sought recalling of the witness who has to come from Rawalpindi, therefore it is right of the witness that expenses should be paid to him and hence the order passed by the learned Trial Court is valid, reasonable and requires no interference by this Court. We have considered the submissions advanced at the Bar and have gone through the law cited by the learned counsel for the petitioner. In the case of Dr. Manzoor Hussain (supra) learned Single Judge of Dacca High Court held as under: "This makes it clear that, no doubt, the Criminal Courts are empowered to order the accused, if he asked for an adjournment to pay costs to the complainant, but this power should not be exercised in such a way as to place obstacle in the way of the accused properly defending himself." In the case of United States Shipping Board (supra), it has been observed that:-- "Expert must be skilled and possess adequate knowledge. His opinion on facts within his science is admissible. The opinion of scientific men upon proved facts may be given by men of science within their own science. The witness must have made a special study of the subject or acquired a special experience therein. That is he must be skilled and have adequate knowledge of the subject." We have heard the arguments of both the learned counsel and have minutely gone through the relevant record. It is observed that learned counsel for the petitioner has emphatically relied upon section 244, Cr.P.C. as well as section 544,, Cr.P.C. section 544, Cr.P.C. deals with expenses of complainant and witness, which reads as under:-- "

544. Expenses of complainants and witness.--Subject to any rules made by the Provincial Government any criminal Court may, if it thinks tit, order payment on the part of Government of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding bet-Ore such Court under this Code." Perusal of the sections 244 and 544, Cr.P.C, it is observed that under section 244(3), Cr.P.C. if the offence is punishable with imprisonment exceeding six months, the accused is not required to deposit any such expenses, whereas, section 544, Cr.P.C. provides that any criminal court may if it thinks fit, order payment on the part of Government of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court but in the present case, the learned trial Court has imposed Rs.20,000 to be paid by the petitioner as expenses of the witness. Though learned D.P.-G argued that the counsel for the petitioner wants to further cross-examine the witness after verification of the Certificates of the witness who is only expert in forensic science, which is nothing but to delay the proceedings, but it is observed burdening the accused with expenses may lead to defeat the ends of justice for the accused who may be incapable of paying or unwilling to pay. In either case result will be that the witness would not be called and the accused will be prejudiced to his trial. This does not appear to be the policy of our law which guarantees to an accused person a right of fair trial which is an inviolable right of an accused person, as envisaged under Article 10-A of the Constitution. After considering all the contentions of the learned counsel and having gone through the relevant provisions of law, we are of the considered view that the learned trial Court has travelled beyond its jurisdiction by imposing costs of Rs.20,000 for further cross-examination of witness Aftab Ahmed Khan. In the above circumstances, we set aside the Order dated 11-11-2010 to the extent of imposition of expenses of Rs.20,000 to the petitioner. However, learned trial Court may direct the NAB Authorities to pay the expenses of the witness if it thinks fit in the circumstances of the case. With above observations, this Criminal Revision Application is disposed of. H.B.T./N- 11/K Order accordingl