P L D 1965 (W (PLP)

(a) Criminal Procedure Code (V of 1898), S. 561‑A‑Quash ment‑Criminal proceedings cannot be quashed simply because accused considers allegations leveled against him false and fantastic. (b) Criminal Procedure Code (V of 1898) [as amended by Code of Criminal Procedure (West Pakistan) (Amendment) Act (XVII of 1964)], Ss. 256 & 257‑Combined effect of amendments. The combined effect of the amendments made in sections 256 and 257 of the Criminal Procedure Code, 1898 is that the cross- examination of a prosecution witness can now take place only at one stage, be it before or after the charge, whereas under the old provisions, as they stood before the 1st of April 1964, a prosecution witness could be subjected to cross‑examination at three stages: (a) at the time he first appeared before the charge, (b) after the charge under subsection (1) of section 25.6, if he was recalled by the accused, and (c) after the close of the prosecution evidence under subsection (1) of section 257, Cr: P. C., if so desired by the accused. (c) Interpretation of statutes

‑Retrospectively‑Statute taking away or impairing vested rights or creating and imposing new obligations or disabilities in respect of past transactions‑Prospec tive and not retrospective in operation‑Change in procedural law, however, operates retrospectively. Maxwell: "Interpretation of Statutes", pp. 213 to 215 ref. (d) Criminal Procedure Code (V of 1898), [as amended by Code of Criminal Procedure (West Pakistan) (Amendment) Act (XVII of 1964)], Ss. 256 & 257‑Amendments Prospective and not retrospective in operation Cross‑examination of witness Fundamental and substantive right of accused and not mere pro cedural matter Complaint instituted and prosecution witness examined before amendment of Ss. 256 & 257‑Accused entitled to demand further cross‑examination under S. 256 (1) or recall witness under S. 257 (1). The right of cross‑examining a witness is not a mere matter of procedure, but is a fundamental and a substantive right, and it may very well be described as being the very essence of the judicial process which aims at ascertaining the truth. It is through cross‑examination alone that the veracity of a witness can be tested before the Court. Sections 256 and 257 of the Code of Criminal Procedure, as they stood before the recent amendments, thus granted a fundamental and a substantive right to the accused person and could not be regarded as mere pro cedural provisions. Any amendments in these sections must, therefore, have prospective effect and cannot apply to pending proceedings, if the accused person demands the right of further cross‑examination under subsection (1) of section 256 or the right to re‑summon a witness ‑under subsection (1) of section 257, Criminal Procedure Code, 1898. Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commis sioner, Delhi and another A I R 1927 P C 242; Daivanayaga Raddiar and others v. Renukambal Animal A I R 1927 Mad. 977; Ram Singha and another v. Shankar Dayal and another A I R 1928 All. 437; Anant Gopal Sheorey v. The State of Bombay A I R 1958 S C 915; Hafiz Abdul Karim v. The State P L D 1959 Lah. 883; Harihar Sinha and others v. Emperor A I R 1936 Cal. 356 and Queen‑Empress v. Nasar‑vanjiedali (1900) Bom. L R 542 ref. Anwar Ahmad Waraich for the State. In this petition under section 561‑A of the Code of Criminal Procedure, read with section 439 of the same Code, a prayer has been made by the three petitioners, Maulvi Muhammad Jamil, Amir Ahmad and Muhammad Ramzan for quashing a charge framed against them under section 420, Pakistan Penal Code, by Ch. Muhammad Asghar, Magistrate of ‑the First Class at Dera Ghazi Khan. The charge has been framed in proceedings instituted against the petitioners by the respondent Nur Khan by way of a private complaint. The two main contentions raised by Sheikh Mahboob Ellahi, the learned counsel for the petitioners are: (a) That the story put forth by the complainant party is false and fantastic and the proceedings, therefore, should not be allowed to continue; and (b) that, in any case, the petitioners have been erroneous y denied their right to further cross‑examine the witnesses under section

256. Cr. P. C., on account of an amendment introduced by the Code of Criminal Procedure (West Pakistan) (Amend ment) Act, 1964, published in the Gazette on the 1st of April 1964.

2. While admitting this petition to a regular hearing on the 17th of August 1964, I remarked as regards the first contention that it appeared to be a matter which had to be determined by the4 trial Court and the proceedings could not be quashed simply for the reason that the petitioners considered that the allegations were false and fantastic. I further added that the allegations as made against the petitioners did disclose the commission of an offence, and it was primarily the function of the trial Court to weigh the evidence produced in support of the allegations or in rebuttal thereof. On this view of the matter, no case was made out under section, 561‑A, Cr. P. C. for quashing the proceedings pending against the petitioners.

3. However, the petition was admitted to examine the second contention raised by Sheikh Mahboob Ellahi. The complaint was instituted on the 29th of July 1963, and the state ment.......complainant Nur Khan was recorded on the 11th of February 1964. The evidence of two other prosecution witnesses, namely, Musa and Ladha, was recorded on the 16th of March 1964, and the petitioners were examined on the 26th of March 1964. The case was then adjourned for arguments on the question whether a charge should be framed or not. Ultimately, a charge under section 420, P. P. C. was framed against the petitioners on 18th of June 1964, and it was directed that the case should come up for the remaining prosecution evidence. A clear implication of this order is that the learned Magistrate is now proceeding under the new procedure as contained in the amended section 256, Cr. P. C. He has not called upon the accused petitioners to state whether they wish to further cross- examine any of the prosecution witnesses whose evidence had been recorded before the framing of the charge.

4. It will be seen that in the instant case the complaint was instituted, and the prosecution witnesses were examined before the promulgation of the Code of Criminal Procedure (West Pakistan) (Amendment) Act, 1964, on the 1st of April 1964. The question, therefore, is whether in the matter of further cross‑examination the case is to be governed by the old section 256 or by the amended section. It is well known that under subsection (1) of the unamended section 256 of the Code of Criminal Procedure, 1898, the Magistrate had to inquire, after the charge had been framed and the plea of the accused recorded, whether the accused wished to cross‑examine any, and if so, which of the witnesses for the prosecution whose evidence had been taken. If the accused person did so wish, the witnesses named by him had to be recalled and allowed to be cross -examined and re‑examined, if necessary. By the amendment introduced on the 1st of April 1964, this right of further cross -examination has been taken away and subsection (1) of section 256 now reads as follows:‑ "If the accused refuses to plead, or does not plead, or claims to be tried, the evidence of any remaining witnesses for the prosecution shall be taken, and the accused shall then be called upon to enter upon his defence and produce his evidence."

5. Subsection (1) of section 257, Cr. P. C. has also been amended by the same amending Act so as to read as follows:‑ "If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness, other than a witness whom the accused has cross‑examined, for the purposes of examination or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be rejected on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing."

6. The effect of the amendment of subsection (1) of section 257 appears to be to debar an accused person from recalling a prosecution witness who has already been cross‑examined. In other words, the opportunity for further cross‑examination which, in the old scheme of things, was some times achieved by accused persons by invoking section 257 of the Code can no longer be availed of under the amended provisions of subsection (1) of section

257. Thus the combined effect of the amendments made in sections 256 and 257 of the Code is that the cross‑examination of a prosecution witness can now take place only at one stage, be it before or after the charge, whereas under the old provisions, as they stood before the 1st of April 1964, a prosecution witness could be subjected e to cross‑examination at three stages: (a) at the time he first appeared before the charge, (b) after the charge under sub section (1) of section 256, if he was recalled by the accused and (c) after the close of the prosecution evidence under sub‑section (1) of section 257, Cr. P. C., if so desired by the/ accused.

7. Now, the position with regard to the applicability of the new procedure to pending cases is, to quote Maxwell "Interpre tation of Statutes, pages 213 to 215", that: "no rule of construction is more firmly established than this that a retrospective operation is not to be given to a. statute so as to impair an existing right or obligation, otherwise than) as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enact-ment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only . . . . . It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair contracts that the rule in question prevails. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed, must be pre sumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Where vested rights arc affected, prima facie it is not a question of procedure."

8. It is further well established that "no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested rights is not only prospective.

9. The propositions stated in the preceding paragraphs have been reiterated time and again in a large number of authorities, and it would suffice to mention only a few which were cited at the Bar by the learned counsel for the petitioners, namely, Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi and another (A I R 1927 P C 242), Daivanayaga Raddiar and others v. Renukambal Ammal (A I R 1927 Mad. 977), Rain Singha and another v. Shankar Dayal and another (A I R 1928 All. 437), Anant Gopal Sheorey v. The State of Bombay (A I R 1958 S C 915) and Hafiz Abdul Karim v. The State (P L D 1959 Lah. 883).

10. The question, therefore, which has to be answered at this stage is whether the right to cross examine and further cross‑examine a prosecution witness is a mere matter of procedure in a criminal trial, or whether it is in the nature of a vested and a substantive right which cannot be taken away by the retrospective operation of the amending statute. Sections 137 and 138 of the Evidence Act make it clear that the evidence of a witness consists essentially of his examination‑in‑chief and cross -examination by the adverse party. In Harihar Sinha and others v. Emperor (A I R 1936 Cal. 356), a Full Bench of that Court described the right of cross‑examination as being a fundamental right. Again in Queen‑Empress v. Nasar‑vanjiedali (1900 Born. L R 542), it was observed that "the accused has a right of cross‑examining the prosecution witnesses under section 256, Criminal Procedure Code, after a charge is framed against him; and the fact that these witnesses may have been fully cross‑examined before the charge does not affect the right of the accused to cross‑examine them after the charge".

11. It seems to me that the right of cross‑examining a witness is not a mere matter of procedure, but is a fundamental and a substantive right, and it may very well be described as being the very essence of the judicial process which aims at ascertaining the truth. It is through cross‑examination alone that the veracity of a witness can be tested before the Court. Sections 256 and 257 of the Code of Criminal Procedure, as they F stood before the recent amendments, thus granted a fundamental and a substantive right to the accused person and could not be regarded as mere procedural provisions. Any amendments in these sections must, therefore, have prospective effect and cannot apply to pending proceedings, if the accused person demands the right of further cross‑examination under subsection (1) of section 256 or the right to re‑summon a witness under sub section (1) of section 257, Criminal Procedure Code.

12. Such a view has already been taken by judicial authorities with regard to the right of appeal which accrued to a litigant at the time of commencement of the proceedings. It has been consistently held that the right of appeal could not be taken away by any amendments introduced during the pendency of the proceedings. I consider that the same position obtains with regard to the right of cross‑examination and further cross-examination granted to an accused person under the old sections 256 and 257, Cr. P. C.

13. For the reasons given above, I would partly accept this petition and direct, under section 439 of the Code of Criminal Procedure, that the trial Court should give an opportunity to the petitioners to exercise their right of further cross‑examination and of re‑summoning any prosecution witness who may have already been examined, under the provisions of sections 256 and 257 of the Code of Criminal Procedure as they stood before the amending Act was promulgated on the Ist of April 1964. K. B. A. Petition partly accepted.