2016 PLP 1206 (MLD)

MAHMOOD AHMED BHATTI, J.

Mujahid Hussain, the petitioner who is an accused of FIR No.312/12 dated 07.08.2012 registered under sections 376 and 511, P.P.C. at Police Station Saddar Alipur, District Muzaffargarh has filed this petition to assail the validity of the order dated 04.02.2015 passed by the learned trial Court, whereby his right to cross-examine the witnesses produced by the prosecution has been closed.

2. Learned counsel for the petitioner submits that the petitioner is indicted for a crime that carries death penalty. According to him, even if the counsel engaged by the petitioner had refused to cross-examine the witnesses produced by the prosecution, learned trial Court was to engage another counsel for him at the State expense, who could have defended the petitioner.

3. A notice was issued to Mst. Sehrish, respondent No.2/the complainant. It seems that she has opted not to contest this revision petition. However, the learned Deputy Prosecutor General has frankly conceded that the impugned order cannot be defended in view of the High Court Rules and Orders on the subject.

4. I have heard the learned counsel for the petitioner and the Deputy Prosecutor General, besides perusing the record annexed to the revision petition.

5. Although it is laudable that cases are to be concluded within the shortest possible time, but it is also axiomatic that justice hurried is justice buried. No doubt the petitioner was duly represented, but when his counsel did not show up for one reason or another, there was no warrant to penalize the petitioner, who is charged with a capital offence. Either the hearing of the case could have been adjourned for a few days or the learned trial Court was to engage a counsel for the petitioner at the State expense. It seems that it was overlooked by the learned trial Court that due process "and a fair trial" has been guaranteed as a fundamental right. To remind it of its obligations, Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced for ready reference:-- "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."

6. The approach of the learned trial Court is liable to be faulted on another count as well. Under no circumstances should it have asked the accused to cross-examine the witnesses produced by the prosecution. Time and again, it has been held by the superior Courts that the cross-examination by an accused can never be a substitute for the cross-examination carried out by a trained legal mind/counsel. It was so held by the honourable Supreme Court of Pakistan in the case of "Saeed Muhammad Shah v. The State" (1993 SCMR 550) and the Sindh High Court in the case of "Waqar v. The State" (2013 PCr.LJ 1279).

7. In view of the above, the impugned order dated 04.02.2015 passed by an Additional Sessions Judge, Ali Pur, District Muzaffargarh is hereby set aside by allowing this revision petition. Consequently, the petitioner shall be dealt with in accordance with the law and he would be provided an adequate opportunity to make an arrangement for his representation, enabling him to conduct the cross-examination of the witnesses produced by the prosecution. YN/M-215/L Revision allowed.