1992 P Cr (PLP)

MUNAWAR AHMED MIRZA, J.

During course of arguments, learned counsel for convicts/appellants pointed out that opportunity of cross examining statement of P.W.8 Saidan Marri has not been granted to convicts/appellants Syed Hakim and Ghulam Sakhi, who were represented by Messrs W.N. Kohli and Syed Shabir Shah Advocates. Mr. Rafiq Ahmad Advocate who represented the accused Latif and W.N. Kohli Advocate are present in the Court. We enquired from them about factual position, whereupon Mr. Rafiq Ahmad Advocate clarified that he was mainly representing convict Latif. However, in pursuance of order dated 16-5 1989 passed by trial Court he appeared for pauper accused Syed Hakim and Ghulam Sakhi till 4-9-1989 when inability to further represent them was disclosed to the trial Court. Record indicates that thereafter Messrs W.N. Kohli and Shabir Shah Advocates represented convicts (i) Syed Hakim and (ii) Ghulam Sakhi. Whereas Mr.W.N. Kohli Advocate expressed that some mistake or confusion appears on record, regarding non-availing of opportunity of cross examination on behalf of two convicts i.e. Syed Hakim and Ghulam Sakhi. In view of above situation we have heard learned counsel for parties on this aspect. Undisputedly sections 428 and 375(2), Cr.P.C. enjoin plenary powers to this Court for rectifying procedural defects or allowing further enquiry or additional evidence, which has bearing on the guilt or innocence of accused to avoid injustice to either party. In this view we are also supported by the observations in case Emperor v. Lal Mia A I R 1943 Cal.

521. Relevant observations are reproduced hereunder:-- "The next point urged by the learned Deputy Legal Remembrancer is that the learned Judge having discovered these materials after the trial, he could, do nothing in the matter and that this Court is also for the same reason powerless to use these materials in this reference and appeal. I am unable to accept this view. So far as I am aware there is nothing in the Code, or anywhere else which would prevent us from taking into consideration the facts brought to our notice by the learned Sessions Judge for the purpose of determining the proper course, which we should follow in the light of these facts. It is a strange proposition to put before this Court that in a case where two persons have been sentenced to death it is powerless to act when it is apprised of the fact that valuable material which could and should have been put in evidence in favour of the accused was not put before the jury owing to the inaptitude of the lawyers for the accused or to the apathy or lack of vigilance on the part of the Judge. I hold the view that we can make full use of these materials before us for the purpose of doing justice. As an Appellate Court, we can ourselves take additional evidence or direct such evidence to be taken under section 428, Criminal Procedure Code. As a Court dealing with a reference under section 374, Criminal Procedure Code we can make a further enquiry or take additional evidence or direct these things to be done by the Sessions Court under section 375 Cr.P.C. It is therefore idle to suggest that we are powerless to do anything upon being apprised of the facts that valuable evidence in favour of the accused which could have been adduced has not been given. Mr. Muhammad Aslam Chishti learned counsel for convict/ appellant Latif and Malik Sultan Mahmood counsel for pauper convict/appellants Syed Hakeem and Ghulam Sakhi submitted that facts of present case are distinguishable from facts an the aforequoted judgment. Firstly we do not find force in their contentions because legal position is crystal clear. This Court has ample jurisdiction for holding further enquiry and recording additional evidence which will have bearing on the guilt or innocence of accused, with a view to promote ends of justice. Secondly omission in separately allowing opportunity of cross examination to accused under the circumstances is mainly of technical and procedural nature which needs to be rectified. Thus visualizing all the aspects and to avoid injustice we are inclined to permit right of cross-examination to accused Syed Hakim and Ghulam Sakhi. For this purpose alone original record be remitted to learned Additional Sessions Judge-1, Quetta who will summon witness. Mr. Saidan Marri and allow cross-examination as observed above. Mr. W.N. Kohli Advocate undertakes to appear on behalf of accused Syed Hakim and Ghulam Sakhi, before the trial Court for purpose of cross examining said witness, after obtaining necessary instructions. It is however, made clear that accused shall have the option of engaging any other counsel. But if they do not choose to exercise such option, then Mr. W.N. Kohli both in capacity as counsel of said convicts in the trial Court or alternately Advocate for pauper accused has extended his services in that behalf. Trial Court after completion of cross-examination as directed above, shall re-submit the record to this Court for final disposal of reference. The appeals shall also to come up alongwith Reference for final disposal to a date in office. It is further directed that trial Court should complete recording of cross-examination expeditiously at the most within one, month. N.H.Q./386/0 Order accordingly.