2016 PLP 546 (YLR)

SHAHAB SARKI, J.

Through this application under Section 561-A, Cr.P.C. applicant/accused Dildar has impugned the order dated 18.03.2015 passed by the Anti-Terrorism Court Naushehro Feroze upon his application under Section 540, Cr.P.C.

2. The facts pertinent to the instant application are that applicant Dildar along with co-accused are being tried for offences under Sections 365-A, 201, 302, 34, P.P.C. r/w 6/7 ATA arising out of Crime No. 05/2015 of Police Station, Bhirya Road. At the commencement of trial the applicant was provided a Senior advocate Mr. Umeruddin Panhwar on State expenses as per the provisions of Anti-Terrorism Act, 1997. The said Counsel duly cross-examined three prosecution witnesses whereafter at the time of cross-examination of 4th prosecution witness the present applicant engaged his private Counsel who was granted an opportunity to cross-examine the witness but he chose to adopt the cross-examination conducted by Mr. Umeruddin Panhwar. It also transpires from the record that all the prosecution witnesses were duly cross-examined in detail by the said Counsel and the private Counsel engaged by the applicant adopted the same cross-examination. That thereafter when the prosecution closed its side, one of the Counsel of applicant/accused Dildar, who had already adopted the cross-examination of Mr. Umeruddin Panhwar, moved an application whereupon the impugned order was passed.

3. Mr. Nusrat Hussain Memon learned Counsel for the applicant has argued that the Counsel provided to the applicant could not get proper assistance from the accused and therefore, the witnesses were not examined on material points. He has further argued that the applicant/accused was not provided an opportunity to engage Counsel of his choice and when he actually engaged a private Counsel then the said private Counsel was/were not provided an opportunity to cross-examine the witnesses. In the circumstances he has argued that cross examination is the valuable right of the accused and therefore, his application for recalling the witness may be allowed and he may be given an opportunity to cross examine all the prosecution witnesses. In this regard he has placed his reliance upon 2011 SCMR 735 (Ghulam Rasool Shah and another v. The State) and an order of this Court passed in Criminal Miscellaneous Application No. 133/2015.

4. Mr. Zulfiqar Ali Jatoi learned DPG on the other hand has argued that ample opportunity was provided to the applicant/ accused as firstly a Senior Counsel was appointed on State expenses and thereafter the applicant/accused engaged two private Counsel and they were duly provided an opportunity to cross-examine the witnesses but they themselves chose to adopt the cross-examination of the Counsel provided by the State. In support of his contentions he has placed his reliance upon 2004 PCr.LJ 1060 (Ghulam Fareed and others v. Mohammad Shafique and another) 2008 YLR 1225 (Zaheer Abbas v. The State), PLD 2014 Sindh 364 (Irfan Qadri v. ATC-III, Karachi and another), 2013 PCr.LJ 1593 (Deedar v. Abdullah and another) and PLD 2015 Lahore 26 (Mohammad Arif Mairaj v. The State and others).

5. We have heard the arguments, perused the record and have gone through the relevant case law. There is no cavil to the proposition that every accused has a right of fair trial, and its basis and essential ingredient is his right to cross-examine any witness who has deposed against him. There are a number of cases wherein opportunity of cross-examination was not provided to the accused and the superior Courts have repeatedly held that every opportunity should be provided to enable the accused to mount their defence. In the instant case we have noted that a Senior and experienced Counsel was provided to the accused at State expenses to conduct his trial as per the relevant provisions of ATA Act, 1997. It is borne out from the record that two other private Counsel were also engaged by the applicant/accused and they were provided an opportunity to cross-examine the prosecution witnesses. The complainant and prosecution witnesses were cross-examined at length and the examination-in-chief and cross-examination of 08 out of 11 prosecution witnesses was conducted in the presence of private Counsel of the accused. The said private Counsel chose to adopt the cross-examination already conducted by the Counsel provided by the State. No objection of any sort is available on record which could reflect that the private Counsel so engaged raised any objection or sought opportunity and the same was denied to them. The case law relied upon by the learned Counsel for the applicant is distinguishable as in the cited case no opportunity whatsoever was provided to the accused to engage private Counsel. There is plethora of judgments on the point that Section 540, Cr.P.C. cannot be used to fill in the lacunas of cross-examination and is to be used only when the Court is satisfied about the existence of such circumstances which would justify recall and further cross-examination of the witnesses. In the present case no cogent reason has been provided by the learned Counsel which can justify recall and re-examination. The learned Counsel has also not been able to bring anything on record which would show that the private counsel ever objected to the cross-examination as they duly adopted the same. Above are the reasons for our short order of even date wherein we have dismissed this application along with listed applications. MH/D-3/Sindh Application dismissed.