2011 PLP 1558 (MLD)

SAGHEER AHMAD QADRI, J.

Petitioner-accused Rabnawaz, son of Mubarak Ali in case F.I.R. No.452 of 2007 dated 13-11-2007 registered under section 302/34, P.P.C. Police Station Basti Malook, Multan facing trial before learned Addl. Sessions Judge, Multan has moved this revision petition against the order dated 17-4-2010 whereby his application under section 540, Cr.P.C., for re-summoning of P.W.7 to P.W.10 for cross-examination was declined by learned trial court.

2. It was contended on behalf of the petitioner that although petitioner had engaged a private counsel and on 11-3-2010 his counsel was not available but learned trial court without affording an opportunity to cross-examine the witnesses appointed a defence counsel at State expense without consent of the petitioner; that the said State defence counsel cross-examined P.W.7 to P.W.10 who were material witnesses; that although in order sheet dated 23-2-2010 it is shown that the case was adjourned to 4-3-2010 but no such order dated 4-3-2010 is present on the file; that petitioner has been deprived of his valuable right of cross-examination; that due to the act and conduct of learned trial court, his case has been prejudiced. Reliance is placed on Najeebullah Khan and others v. The State and others (2007 SCMR 210) and Nadeem Wall v. State and another (2006 YLR 3308). Prayed that the impugned order be set aside and the witnesses be allowed to be re-summoned for cross-examination on part of petitioner-accused.

3. Learned counsel for the petitioner reiterated above mentioned facts during arguments.

4. On the other hand learned counsel for the complainant-respondent No.2 has vehemently opposed this petition on the grounds that petitioner himself consented for appointment of defence counsel at State expense who cross-examined the witnesses at length, therefore, at present no ground exist for re-summoning of witnesses for cross-examination on behalf of the petitioner-accused. Prayed that these are just delaying tactics and as the case is at the concluding stage, therefore, petition be dismissed.

5. I have heard the arguments of learned counsel for the parties and perused the record.

6. If the above mentioned interim order dated 23-2-2010 is seen, the case is shown adjourned to 4-3-2010 but no order is available on record passed on the said date whereas next order on the order sheet is shown recorded on 11-3-2010. The order dated 23-2-1010 is hereby reproduced: "The P. Ws. Shamsher Iqbal, Sajjad, Allah Bachaya and Muhammad Ismail are present. Accused Rabnawaz, is not in attendance. Accused Yousuf has filed fresh power of attorney. Learned counsel requests for an adjournment. As the P. Ws. are in attendance, but in the interest of justice to cross-examine the witnesses an adjournment is given. If learned defence counsel shall not cross-examine the witnesses, then right of cross-examination shall be struck off. Adjourned to 4-3-2010." There is no order dated 4-3-2010 available on order sheet, and instead following order dated 11-3-2010 is recorded:-- "Accused Rabnawaz states that his counsel is not in attendance and his counsel on State expenses may be engaged. Therefore at his request Sajid Abbas, Adv. is engaged his counsel on State Expenses. Wakalatnama is submitted. Learned counsel Nafees Ahmed Ansari, Adv. is in attendance. The P. Ws. are present. Cross-examination on P. Ws. 37 to 10 stand completed. P. W. Zarif 1799/C. Khazir Hayat 521/C, Liaqat Ali Naqvi Magistrate are summoned for 11-3-2010. The complainant shall produce his witnesses." If the above mentioned order is seen although it is shown that the accused-petitioner Rabnawaz due to absence of his counsel requested the court that he be provided defence counsel at the State expense but his statement in this respect has not been recorded nor his signatures were obtained on the order sheet. However when the petitioner has already engaged a private counsel and due to his absence on one occasion no ground exist for the appointment of defence counsel at State expense because it is the right of an accused person to be defended by a counsel of his own choice. Even otherwise the discrepancy of the date abovementioned in the order sheet if seen it seems that learned trial court in hurry to conclude the trial committed this error or perhaps the order was recorded later on. No doubt it is intention of the law that the matter between the parties be disposed of as early as possible but not at the costs to decide the cases in such a manner that it gives impressions that injustice has been done to any of the parties. In these circumstances, the petition in hand is allowed and impugned order dated 17-4-2010 is hereby set aside.

7. It is brought into notice that now the trial is fixed on 5-6-2010. Learned Addl. Sessions Judge shall allow one opportunity to the present petitioner-accused Rabnawaz to cross-examine Muhammad Iqbal P.W.7, Allah Bachaya P.W.8, Ismail P.W.9 and Shamsher Iqbal P.W.10. Learned trial court shall summon the witnesses for cross-examination by the learned trial court for the Rabnawaz present petitioner and in case if petitioner-accused failed to get cross-examined those witnesses, his right shall be closed. Disposed of. N.H.Q./R-32/L Petition allowed.