2010 PLP 1775 (MLD)

IMAM BUX BALOUCH, J.

The appellant assailed the judgment dated 15-10-2009 passed by the learned 2nd Additional Sessions Judge Sukkur (Mr. Aijaz Ali Khaskheli) convicting and sentencing the appellant under section 302(b), P.P.C. to death as Tazir and awarded Rs.50,000 under section 544-A, Cr.P.C. compensation to the legal heirs of the deceased Mst. Shirimati Ram Piari @ Premi. The prosecution case according to the F.I.R. is that one Karamdas son of Nanko by caste Bagri lodged F.I.R. at Police Station Baiji Sharif on 28-12-2004 at 1430 hours that his daughter Mst. Shirimati Ram Piari alias Premi, son Mohandas and relative Vakeel left their house at a donkey cart and were going to Kot Bulla for their personal work. When at about 0930 hours, they reached Baiji Chowk appellant (accused) Ghulam Sarwar having pistol came and abused and asked Mst. Shirimiati Ram Piari alias Premi that as she has discontinued relationship with him she should not be spared and fired a shot from his pistol upon Mst. Shirimati Ram Piari alias Premi which hit her on the left side of her abdomen and the appellant (accused) escaped away from the scene of offence. Mst. Shirimati Ram Piari alias Premi went unconscious and she was taken to Police Station Baiji Sharif and the police referred her to Taluka Hospital Pano Akil and subsequently she was referred to Civil Hospital Sukkur. However, in the way for Sukkur she expired. Her dead-body was brought back for postmortem examination at Taluka Hospital Pano Akil. After conducting postmortem the dead body of Mst.Shirimati Ram Piari alias Premi was handed over to her legal heirs for burial ceremony. Complainant Karamdas reported the incident to police Baiji Sharif and such F.I.R. was registered in 154, Cr.P.C. Book. After completing the investigation challan was submitted and subsequently the case was entrusted to the court of reamed 2nd Additional Sessions Judge Sukkur. Charge was framed on 31-10-2005, to which the appellant pleaded not guilty. During trial the prosecution examined complainant Karamdas as P.W. at. Exh.4, he has produced F.I.R. at Exh.4/A. Dr. Rozina Abro as P.W.2 at Exh. 5, she has produced postmortem report of deceased Mst. Shirimati Ram Piari alias Premi as Exh.5/A. Mohandas as P.W.3 at Exh.8, he has produced his 164, Cr.P.C. statement at Exh.8/A. Vakeel as P.W.4 at Exh.9, he has produced his 164, Cr.P.C. statement at Exh.9/A. Roshan Ali as P.W..5 at Exh.10, he has produced mashirnama of arrest of appellant at Exh.10/A. Zamir Hussain as P.W.6 at Exh.11. Gulro as P.W.7 at Exh.12, he has produced mashirnama of receiving the clothes of deceased Mst.Shirimati Ram Piari alias Premi at Exh.12/A. Danishrnama at Exh.12/B, mashirnama of place of wardat at Exh.12/C, Ashfaque Ahmed as P.W.8 at Exh.14. After that the prosecution has closed its side and the statement of the appellant was recorded under section 342, Cr.P.C. The appellant along with his statement has produced the judgment passed by the learned 2nd Civil Judge and Judicial Magistrate Pano Akil passed in Criminal Case No.8 of 2005 and subsequently acquitted from the charge by the judgment dated 28-8-2006. He is examined himself under section 340(2), Cr.P.C. and after hearing the parties the impugned judgment was passed by the learned trial Court. We have heard Mr.Ghulam Murtaza Korai learned counsel for the appellant and Mr. Zulfiquar Ali Jatoi for the State. At the very outset the learned counsel for the appellant argued that the eye-witnesses Mohandas, Vakeel, Roshan Ali, Gulro and Ashfaque Ahmed were cross-examined by the accused himself. He further argued that though he has engaged counsel for conducting the case but unfortunately all the learned counsel have failed to conduct the case and consequently the learned trial court examined the above witnesses without affording an opportunity to the appellant to ask his counsel for cross-examination as the offence for which the appellant charged carried capital punishment and in consequence he was convicted and sentenced to death. The learned counsel for the appellant further argued that it is the essential right of the appellant that in such like cases as the one in hand accused being illiterate and does not know about the cross-examination a vested right was denied by the learned trial Court. Consequently the appellant was convicted and sentenced to death. To sum up his arguments he prayed that the case may be remanded for fresh cross-examination of the witnesses. Learned counsel for the appellant has relied upon the following case-laws:-- (1) Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550). (2) Qalandor alias Nazro v. The State 1997 MLD 1632. (3) Muhammad Javed and another v. The State and another (2006 PCr.LJ 1170). (4) Emperor v. Kasamallai Mirzalli(AIR (29) 1942 Bombay 71 Full Bench. On the other hand learned D.P.G. contended that the learned trial court has afforded so many opportunities to the appellant but his counsel have not appeared to cross-examine the witnesses and there was no alternate way available to the learned trial court to ask the accused to cross-examine the above witnesses. Learned D.P.G. further argued that the incident has taken place in a broad daylight and there was a motive for commission of the offence by the appellant and the learned trial Court rightly convicted and sentenced the appellant. He further argued that cross-examination conducted by the accused upon the witnesses and there is no need to remand the case for further cross-examination by a counsel as so many opportunities were given by the learned trial court to the appellant but the counsel engaged by the appellant intentionally and deliberately have not come forwarded to cross-examine the witnesses. In the last with half heartedly the learned D.P.G. supported the impugned judgment. We have examined the evidence available on record. We are with full agreement, with the learned counsel for the appellant that an essential right was denied by the learned trial court for cross-examination of the witnesses as cross-examination by accused is different from cross-examination by a counsel. The cross-examination by accused himself is not substitute of cross-examination by the counsel as held by a Supreme Appellate Court in the case of Syed Saeed Muhammad Shah and another supra. Under section 540, Cr.P.C. powers are given to the court to summon or recall any witness or already if his evidence is essential to the just decision of the case. This section is divided into two parts, one where it is discretionary for the Court to summon a court witness suo moto or on application and the second part is where it is mandatory for the Court to do so. Main precondition for exercise of mandatory duty is the satisfaction of the Court that the evidence of the witness is essential for just decision of the case. In the present case the learned trial court has not taken any pain to engage a counsel who would be able to cross-examine the witnesses on behalf of the appellant on government expenses, as the case carries capital punishment of death sentence. In the case of Qalandro alias Nazroo this Court held "that the appellant in the cross failed to controvert either of them or discredit their testimony". The Question that warrants determination is as to how in cases where the accused is unrepresented by counsel and a scanty cross leaving prosecution testimonies uncontroverted to be construed and it was further relied upon the case of Muhammad Alam Shah v. The state PLD 1987 S C 250 wherein their lordships of a full bench of Honourable Supreme Court observed as under:-- "The courts below seem to have been greatly influenced in arriving at their conclusions by the fact that the accused did not direct any cross-examination to challenge the testimony of these witnesses. They have ignored to take into consideration that the accused was unrepresented in the trial court. We cannot approve of such an approach to the appreciation of evidence in criminal cases. it is the obligation of the court to take into consideration all matters placed before it in a trial before arriving at the conclusion whether a fact is proved or not. The proof of a fact depends not upon the accuracy of the statement but upon the probability of it having existed." The concept of right to counsel or phrased differently the right to be represented by a counsel covers the following: a) the right of an accused or litigant to have access to or to engage a lawyer who in turn is allowed full opportunity to contest and present the case of this client: b) The right of an accused to claim appointment of a competent counsel on State expenses in situations prescribed by law e.g. capital punishment: c) the duty of the court to apply the correct law and decide accordingly, notwithstanding that the accused/litigant is unrepresented by counsel. In the case of Muhammad Javed and another v. The State and another, Supreme Court AJ&K, while examining the case of appellant has observed as under:-- "We have given our due consideration to the arguments of the learned counsel for the parties and gone through the record of the case. In the very beginning let us make it clear that the cross-examination is a legal, legitimate and equitable right under law and this right cannot be denied to any party to the litigation in an arbitrary and unguided manner. No doubt in this case the appellants had engaged four counsel from local bar but none of them appeared on the date when the case was called for hearing and the examination-in-chief of Dr. Malik Mehmood Khan. P.W. was recorded by the trial Court. The conduct of Advocates so engaged is very objectionable. In these circumstances the appellants were justified to request for adjournment so that they may engage some other counsel. From the order of trial Court it is clear that a request for adjournment was made on the ground that they would like to engage some counsel from outside Kotli." The honourbale Supreme Court AJ&K further observed as under: -- "In this case we cannot blame appellants as they had engaged four counsel from local bar and none out of them appeared on their behalf to defend them. The adjournment claimed for the purpose of cross-examination on their behalf was therefore not unfair. Expeditious disposal of trials is no doubt a good thing but it should not be at the cost of fair and just trial as was rightly contended by the learned counsel for the appellants. In this case as still some other witnesses have to appear for prosecution, therefore, in our view the order passed by the trial Court on 19-1-2005 which was maintained by the Shariat Court vide judgment under challenge dated 9-3-2005 is illegal and unwarranted by law and rule of justice. By accepting this appeal the orders of trial Court and Shariat Court are set aside. Dr. Malik Mehmood Khan shall be resummoned for cross-examination. In the meantime the appellants shall engage some counsel if so advised. The parties are directed to appear before the trial Court on 26-11-2005 for further proceedings." In the case of Emperor v. Kasamalli Mirzalli the Full Bench of Bombay High Court observed as under:-- "So that the right to cross-examine a prosecution witness on his statements made to the police is a privilege conferred on the defence." After considering the law laid down by honourbale Supreme Court and by this court, we are of the view that appellant, has a vested right that he be represented by a counsel, if private counsel are not coming forward to cross-examine the witnesses, it was the duty of learned trial court to engage a senior counsel on State/government expenses, so that the appellant should be given a chance to put his case before the learned trial court, which right was denied by the learned trial Court. The learned D.P.G. was unable to controvert the submissions advanced by the learned counsel for the appellant and we after considering all the facts of the case, are of the view that the conviction and sentence awarded to the appellant by the learned trial court be set aside and the case be remanded for cross-examination of the witnesses so that the appellant shall be given a chance to put his case before the learned trial Court. Consequently we set aside the conviction and sentence recorded by the learned trial Court and remand the case to the learned trial Court with the directions to afford an opportunity to the appellant to defend himself in the learned trial Court, if the appellant is unable to engage a senior counsel, the learned trial Court is directed to appoint a senior counsel as an advocate for pauper accused on the government/State expenses and conclude the trial within three months after receipt of this judgment. The Confirmation Case No.8 of 2009 in reference made by the learned trial court is answered accordingly. H.B.T./G-26/K Case remanded.