2023 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

Through this petition the petitioner has prayed as under: "It is, therefore, respectfully prayed that after calling the record, both impugned order dated 15.09.2020 and 27.04.2020 passed by Special Judge, Anti-Corruption Balochistan Quetta may kindly be set aside and petitioner be allowed/given opportunity to cross-examine complainant and I.O. of case i.e. PW-7 and PW-9 through his pleader in the interest of justice."

2. Brief facts leading to file the instant petition is that on the complaint of Dr. Amin Khan Mandokhail, an FIR No. 4/Q/2018, under sections 409,420, 467, 468, 109, P.P.C. read with section 5(2) Act-II, 1947, was registered with PS Anti-Corruption, District Quetta against the petitioner. The record reveals that the PW-7 (complainant) and PW-9 (Investigating Officer) were not cross-examined by the counsel for the accused/petitioner. As per order-sheet dated 15.09.2020 the statement of PW-1 was recorded but on the request of counsel for the petitioner one hour time was granted for cross-examination but at 11:00 a.m., the counsel failed to appear and accused/petitioner seeks time, which was allowed and the matter was fixed on the same date for 2:00 p.m., but the counsel again remained absent, as such the right of accused for cross-examination the witness was struck off. As per order sheet dated 27.04.2021 the investigating officer appeared for deposition but due to absence of counsel for the petitioner the court granted two hours' time, but the counsel did not appear and the right of cross-examination was closed.

4. Heard. Perused the record. The record reflects that the trial court has examined PW-9 in absence of counsel, whereas the statement of PW-7 was recorded in his presence but later on due to absence of learned counsel for the petitioner, the right of cross-examination was closed. The record reveals that the trial court has allowed the time i.e., 3 to 4 hours for appearance of counsel of accused. Where statement of witnesses has been recorded in absence of counsel such evidence so recorded lost significance, injustice is likely occurred in case where right of cross-examination was not conducted by the Advocate or right of cross-examination closed. Even the cross-examination conducted by accused himself on prosecution witnesses is not considered to be substitution of cross-examination conducted by the counsel. Cross-examination of a witness is most valuable right of an accused. The Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") is a living document, wherein the right of fair trial is guaranteed under Article, 10-A, which stipulates 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."

5. As per above Article fair trial is fundamental right. The cross-examination is valuable right which is most important then examination-in-chief. In Jan Sher Khan's case 2013 MLD 1554, it has been held as under: "Under Article 133 of Qanun-e-Shahadat Order, comparative Article 138 of Evidence Act, cross-examination is a valuable right guaranteed by legislature to an accused to challenge veracity of a witness and is entitled to cross-examine the prosecution witness to adduce the facts in support of his defense from said witness. The principle to observe veracity of witness and credibility of evidence is that the witness who enters in the witness box, states whatever he has to say on oath and then subject to cross-examination constitute a complete statement made by witnesses, however, if opportunity of cross-examination was declined to accused, such evidence as a general rule of evidence is not legally admissible against the accused. In the instant case learned counsel for the appellant was declined to have some time to prepare for the cross-examination of Investigating Officer, the important prosecution witness depriving the defense of his valuable right and opportunity of shacking the credit of prosecution witness by bringing out the contradictions between the statement of prosecution witnesses made to police during investigation and evidence in the Court. It is also matter of record that the prosecution had not closed it's side but the trial court vide order dated 26- 10-2010 had closed the prosecution side observing that material witnesses have been examined and prosecution has not produced other witnesses since 20 months, the matter pertaining to the year 2006 being old one was required to be decided under the directions of National Judicial Policy Making Committee. Besides above, the perusal of impugned judgment reveals that the trial court while recording the conviction has considered the forensic report as corroborative evidence, however no question regarding the forensic report was put to the appellant during his examination under section 342, Cr.P.C. nor the said statement is signed by the appellant, the above discrepancies and legal defects pointed out by learned defense counsel render the trial unfair, I therefore, set aside the conviction and sentence awarded under the impugned judgment and direct the remand of case for retrial from the stage of cross-examination of Investigating Officer and thereafter decide the case afresh after following proper procedure of examining the appellant under section 342, Cr.P.C."

6. The accused should not suffer fault of counsel for not cross-examining the PW-7 (complainant) and PW-9 (Investigating Officer), who are the most important witnesses and in absence of cross-examination, the accused shall seriously be prejudiced. In this regard the Hon'ble Supreme Court of Pakistan on the case of Abdul Ghafoor v. State 2011 SCMR 23, observed as under: "

6. Admittedly both the eye-witnesses namely P.W.10 Ziaraf Ali and P.W.11 Manzoor Hussain were not cross-examined. The learned High Court adverted to this aspect but held that the appellant is to be blamed as sufficient opportunities were given to cross-examine these witnesses. In paragraph 16 of the judgment, the learned High Court observed as follows:-- "We may also mention that the examination-in-chief of the two eye- witnesses namely Ziaraf Ali (P.W.10) and Mansoor Hussain (P.W.11) was recorded on 24-11-1998 and thereafter at least 10 opportunities were granted to the defence, which failed to cross-examine the said witnesses and even no application under section 540, Cr.P.C. was ever moved to the learned trial Court for re-summoning these two eye-witnesses for the purpose of cross-examination. Even no application was moved before this Court for the said purpose although seven years have already passed when the impugned judgment was passed. So this court cannot discard the statements of both P.Ws. 10 and 11, which have gone unchallenged while the presence of P.W.12 at the spot was stamped by the injuries sustained by him during the occurrence, which cannot be doubted."

7. 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." In view of above, the petition is accepted. The orders dated 15.09.2020 and 27.04.2020, passed by Special Judge, Anti-Corruption Balochistan Quetta are set-aside, the trial court is directed to provide opportunity to the counsel for the petitioner for cross-examination the PW-7 and PW-9. With the above terms the petition stands disposed of. JK/116/Bal. Petition allowed.