2016 P Cr (PLP)

SHAHID HAMEED DAR, J.

The petitioner is aggrieved of a couple of orders made by the learned trial court (Judicial Magistrate, Gujranwala) on 06.05.2014 and by the learned revisional court (Additional Sessions Judge Gujranwala) on 13.05.2014 whereby his right to cross-examine Naseer Ahmad SI (PW-1) and Muhammad Tofail HC (PW-3) has been closed during trial of case-FIR No.628/2009, dated 07.12.2009, under sections 468, 471, 419, 420, P.P.C. read with section 30(2) of NADRA Ordinance, 2000, police station Sabzi Mandi (Gujranwala), the petitioner is an accused whereof.

2. Brief facts of the case are that Naseer Ahmad SI entered appearance before the trial court for his examination as a witness on 27.02.2013. His examination in chief was recorded as PW-1 and right of the petitioner to cross-examine him was closed the same day by the learned trial court, when petitioner made a request for keeping it reserved for some other day. Likewise Muhammad Tofail HC appeared before the trial court on 24.04.2013 for recording his evidence. His examination in chief was recorded as PW-3 and petitioner's right to cross-examine him was closed by the trial court for an identical reason, like it happened in the case of PW-1. The petitioner being aggrieved of the said orders filed a revision petition which was allowed by the learned Additional Sessions Judge Gujranwala on 29.01.2014 in terms that the petitioner was granted one opportunity to cross-examine the said witnesses. Learned trial court again closed the petitioner's right to cross-examine them on 06.05.2014 as his counsel was not available on the said day due to a death in the family; the petitioner filed a revision petition again but without any success as it was dismissed by the learned revisional court vide order dated 13.05.2014.

3. After hearing learned counsel for the parties and perusing the record, it is observed that the conduct of the petitioner cannot be appreciated at all by any stretch of imagination but it does not mean that he should be unnecessarily punished only for the fact that his learned counsel could not make himself available for the cross-examination of PW-1 and PW-3 on the dates fixed. Learned counsel for the petitioner has submitted that half recorded statements of the Prosecution witnesses (PW-1 and PW-3) would be injurious to the case of the petitioner and he would be penalized for an offence which he had not committed. Learned Assistant Advocate General Punjab opposes this petition in a lukewarm manner and submits that the petitioner did not show any seriousness during the course of the trial and he deliberately slowed down himself to lengthen proceedings of the trial. When asked by the court, if only one opportunity to cross-examine the above named prosecution witnesses is given to the petitioner, how would he feel, in answer to which learned law officer merely smiled, which impliedly meant that he too believed that an opportunity to the petitioner, in the aforesaid context, would not injure the prosecution case in any manner rather it would help the learned trial court reach just decision of the case with added comfort.

4. The veracity of the statement of a witness can only be determined if it is properly questioned/grilled by the person against whom is has been made. Learned counsel for the petitioner has undertaken that an opportunity, if given to the petitioner for cross-examining PW-1 and PW-3 would not be thrown away by him and he would show fullest cooperation in this regard so as to save his case from unnecessary and uninvited complications. He further submits that the learned trial court may close the right of the petitioner in absolute terms, if he again showed laziness or evasiveness in cross-examining the said PWs. The interest of justice would be best served if, notwithstanding the aforesaid evasive conduct of the petitioner, only one, repeat one, opportunity is afforded to him to cross-examine the above said prosecution witnesses (PW-1 and PW-3) within the spirit of Qanun-e-Shahadat Order, 1984.

5. Therefore, this petition is allowed in terms, as mentioned hereinabove. Learned trial court is directed to complete testimonies of the aforesaid PWs, after having them cross-examined by the defence and conclude trial of the petitioner as expeditiously and conveniently as possible. MH/G-6/L Petition allowed.