1999 PLP 385 (MLD)

Representation

• ----S. 540---Penal Code (XLV of 1860), S.302/504/34---Recalling of prosecution witness for further cross-examination---Trial Court in haste and without waiting for the counsel of accused had appointed counsel of co-accused as counsel on their behalf in the case in which the defence of accused and co -accused was different and adverse to each other---Cross-examination on the prosecution witness conducted by the said appointed Advocate was not only prejudicial to the case of accused but had damaged their defence---Trial Court either should have adjourned the case to a short date or appointed other independent senior counsel for the accused providing him sufficient time to prepare the case by obtaining proper instructions from them---Order of Sessions Court dismissing the application moved by accused for recalling the aforesaid prosecution witness for further cross-examination was against law and principles of natural justice had been seriously prejudiced in their defence---Impugned order was, consequently, set aside with the direction to trial Court to re-examine the above stated prosecution witness for further cross-examination by the counsel of the accused already appointed by them.
• The applicants were represented before the trial Court Mr. Abdul Hakeem Memon, Advocate, while do accused Nim Mr. Hussain Bakhsh Talpur, Advocate.
• The case diary of the learned trial Court dated 14-3-1998, produced by the applicants, shows that Mr. Abdul Hakeem Memon, Advocate for the applicants, was absent when the case was called by the learned trial Court and only Mr. Hussain Bakhsh Talpur was present, who was the counsel for the co- accused Nim. The applicants, as per case diary, moved the application for appointment of some other counsel on State expenses. The application of the application was allowed by the learned trial Court and Mr. Hussain Bakhsh Talpur, for the co-accused Nim was appointed to defend them. However, no time was given by the learned trial Court to Mr. Hussain Bakhsh Talpur to prepare the case for defence as such he proceeded with the case and cross -examined P.W. Muzzafar Ali for all the accused including the applicants.
• Syed Madad Ali Shah learned counsel for the applicant has attacked the impugned order on the ground that the learned trial Court could not have appointed other Advocate for the applicants, who had already engaged a senior counsel to defend them in a murder case; that the learned trial Court should have waited for Mr.' Abdul Hakeem Menton, who is an outstation Advocate and have adjourned the case to the next day or to some other short date. The learned counsel further submitted that Mr. Hussain Bakhsh Talpur, was appearing for the co-accused Nim, who had adverse defence than the applicants. The learned counsel has further contended that in any case the trial Court should have granted at least one week's time to Mr. Hussain Bakhsh Talpur to prepare the case and could not have proceeded with the case immediately. The grievance of the learned counsel for the applicants is that the application for appointment of Advocate on state expenses was moved by the applicants under the direction of the learned trial Court and that only question put by Mr. Hussain Bakhsh Talpur to P.W. Muzzafar Ali, who is Investigating Officer of the case, was a damaging question and cased serious prejudice to the case of the applicants. The learned counsel, therefore, stressed that recalling of P.W. Muzzafar Ali will be essential to the just and proper decision of the case.
• In the case of Puma Chandra Mondal (supra) a Division Bench of Dacca High Court held that the trial of pauper accused charged for murder commencing immediately upon appointment of an Advocate by Sessions Judge without giving proper opportunity to prepare case for defence is in denial to the prisoner of the right conferred on him by section 340, Cr.P.C. Consequently, in reported case trial was held to be not according to law and fresh trial was ordered.
• In the case of Roshan Ali (above) a learned Single Judge of this Court allowing criminal revision ordered recalling of the complainant for further cross -examination under section 540, Cr.P.C. on the ground that further examination of the complainant was necessary as important questions, relating to the provisious enmity, contradictions in the depositions and F.I.R. had been left over by the Advocate for pauper accused.
• In the present case, the applicants were represented by a senior counsel Mr. Abdul Hakeem Menton and Mr. Hussain Bakhsh Talpur was counsel of the co-accused Nim and defence of applicants/accused and co-accused is said to be different and adverse to each other, as such, appointment of Mr. Hussain Bakhsh Talpur, Advocate for applicants was improper and prejudicial to the case of the applicants. The grievance of the applicants also seems to be correct as copy of deposition of P.W. Muzzafar Ali shows that Mr. Hussain Bakhsh Talpur, so far his client Nim is concerned, has cross-examined the witness at length but for the applicants the learned Advocate has put only one question which is reproduced below:--
• "cross to Mr. Hussain Bakhsh Talpur, for remaining accused a pauper Advocate.
• The learned Trial Court in haste and without waiting for the Advocate for applicants, who is stated to be practising at Tando Muhammad Khan wrongly appointed Mr. Hussain Bakhsh Talpur, for the applicants.
• In view of this position, the impugned order is against law and principles of natural justice and applicants were seriously prejudiced in their E defence. Case diary showed that Mr. Abdul Hakeem Memon, reached the ;Trial Court and moved application under section 540, Cr.P.C. on the same date, which had, prima facie, proved the fact that action of the learned Trial Court in appointing Advocate for the applicants and proceeding with the case on the very same day was in haste and against the law.

Headnotes / Summary

Judgment & Decree