Evidence of prosecution

2020 PCrLJ 1315 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 265-FEvidence of prosecutionClosure of right of cross examinationPetitioner assailed order of Trial Court whereby his right of cross-examination was closedEffectRecord showed that during the proceedings the prosecution examined ten witnesses

Examination-in-chief of three prosecution witnesses was recorded on 14.2.2018 and that of one prosecution witness on 8.11.2018 but their cross-examination was reserved on the request of the defence

Trial Court afforded a number of opportunities to the petitioners to produce their counsel and cross-examine the said witnesses but they did not

Eventually due to their contumacious conduct, Court closed their right of cross-examination

Validity

Fair trial was central to the administration of justice

Right to cross-examine the witnesses was a component of the right to a fair trial and is considered to be "the greatest legal engine ever invented for the discovery of truth"

In the present case, the petitioners used dilatory tactics from the very inception and hampered the trial

Most often petitioners did not produce their counsel on the pretext that he was busy elsewhere

Eventually, on 14.2.2018, the Trial Court recorded the examination-in-chief of complainant and two other prosecution witnesses

Petitioners did not cross-examine them and sought adjournment

On 7.3.2018, examination-in-chief of two witnesses was recorded while on 4.4.2018, 15.5.2018 and 8.11.2018, the statements of four more witnesses were put down

Petitioners did not cross-examine any of them and kept seeking adjournments due to non-availability of their counsel

Trial Court had given them warning on various dates of hearing but they fell on deaf ears

On 26.9.2019, when the petitioners again asked for adjournment, the Trial Court refused and directed them to cross-examine the witnesses then in attendance themselves

Petitioners did not do so, whereupon court closed their right to cross-examine qua them

Admittedly, there was no provision in the Criminal Procedure Code, 1898, which specifically empowered the Trial Court to guillotine the accused's right of cross-examination, however, that did not mean that petitioners could abuse the process of law with impunity and took the court hostage, hence, when petitioners deliberately avoided to produce their lawyer, the Trial Court might appoint a defence counsel at State expense and proceed with the trial

Evidently, the impugned order dated 26.9.2019 was contrary to law and had caused serious miscarriage of justice

Accordingly, the petition was accepted by setting aside the impugned order

Trial Court was directed to provide the petitioners one opportunity to produce their counsel and cross-examine the prosecution witnesses, if petitioners failed to do so, appoint a defence counsel and conclude the trial in accordance with law.

2020 MLD 942 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 540, 265-F & 493Power to summon material witnesses or examine person presentEvidence of prosecutionPublic prosecutor to conduct prosecutionScope

Application moved by complainant for summoning of witnesses, who were not cited in the list of witnesses, was dismissed by Trial Court

Validity

Names of witnesses, sought to be examined by the complainant, were not mentioned in challan which, prima facie, suggested that said witnesses never approached the investigation officer during investigation process nor the complainant claimed them to be witnesses of the incident during investigation

Complainant had not challenged the list of witnesses, detailed in the challan, by filing a direct complaint

Said act suggested satisfaction of the complainant about names of witnesses that came to surface during investigation

Complainant, being not an investigating officer, was not justified to bring new names as witnesses that, too, after conclusion of trial else same would prejudice the purpose of list of witnesses which as, prima facie, was to let the accused know the evidence likely to be led against him within the meaning of S. 265-F, Cr.P.C.

Complainant himself had filed the application who, otherwise, was legally obliged to act through the Prosecutor, as directed by S. 493, Cr.P.C.

Reasons given by Trial Court were quite justified

Petition was dismissed.

2020 MLD 942 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.265-FEvidence of prosecutionScope

Section 265-F, Cr.P.C. ensures a fair opportunity to both prosecution and defence in bringing their respective witnesses/material on record but not as a surprise or to prolong the conclusion of trial.

2020 MLD 594 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 265-FEvidence of prosecutionClosure of right of cross-examinationRefusal of accused to cross-examine witnessEffectPetitioner assailed order of Trial Court whereby his right of cross-examination was closed

Examination-in-chief of the witness was recorded but despite repeated calls counsel of the petitioner did not appear before the Trial Court and made request through clerk for adjournment, which was refused and thereafter counsel appeared before the court, insisted for adjournment and refused to cross-examine the witness

Trial Court closed the right of cross-examination as counsel of petitioner was afforded as many as five opportunities for cross-examination

Held; opportunity of cross-examination was not availed by counsel of accused and when a party or his counsel failed to avail the opportunity of cross-examination or refused the same High Court refused to interfere in revisional jurisdiction

Negligence on the part of counsel was binding upon a party which had engaged him/her

Where a party engaged a counsel who lacked sense of responsibility to the court, it was the party who had to suffer and not the other side

Observation of Trial Court that five opportunities were provided to the counsel of petitioner for recording the statement of witness was incorrect

High Court, in the interest of justice, provided only one and final opportunity to the petitioner for cross-examination on the witness

Revision petition was accepted.

2017 MLD 1611 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 265-F(6) & (7), 340 (2), 342 & 537Qanun-e-Shahadat (10 of 1984), Art. 47Constitution of Pakistan, Art. 10-AEvidence of prosecutionDefence evidence, production ofScopeRight of person, against whom proceedings are initiated, to be defended and his competency to be a witnessScopePower to examine accusedFindings or sentence when reversible by reason of error or omission in charge or other proceedingsRelevancy of certain evidence for proving, in subsequent proceedings, truth of facts stated thereinRight to fair trial

Accused, while recording of his statement under S.342, Cr.P.C., opted to adduce evidence in his defence in terms of S.265-F(6), Cr.P.C. and sought permission to produce documentary evidence in the form of statements of prosecution witnesses and judgment recorded in earlier trial of co-accused under the same FIR, which had resulted in acquittal

Trial Court declined said request of the accused on ground that prosecution witnesses had already been examined in the present case, thus their statements recorded in the earlier trial were not relevant

Word 'shall' in S.265-F(6), Cr.P.C. could not be termed as discretion of Trial Court; rather, some serious obligation was cast upon Trial Court to afford opportunity to accused to adduce his defence evidence

Accused, while recording of his statement under S. 342, Cr.P.C., had answered 'yes' in reply to question 'would you want to produce defence evidence', and as such, he had opted to adduce defence evidence

Trial Court could only refuse to initiate proceedings under S. 265-F (6), Cr.P.C. as envisaged under S. 265-F(7), Cr.P.C.

Impugned order revealed that ground or reason for refusal to adduce evidence to accused as envisaged under S. 265-F(7), Cr.P.C. was missing; the same was, therefore, illegal and without lawful authority

Trial court had not only refused request of accused to adduce defence evidence but also closed defence evidence and as such the accused was not allowed to appear as witness in his own defence, which was violation of S. 340(2), Cr.P.C., and such illegality was not curable under S. 537, Cr.P.C.

Trial Court had gone beyond its jurisdiction, as statement under S. 340 (2), Cr.P.C. read with S. 265-F (6), Cr.P.C. for adducing documents, being defence evidence, was mandatory provisions of law

Trial Court could determine and ascertain said statement and defence documents at time of final adjudication of trial after hearing both the parties

Accused was competent defence witness, and if he wanted to appear in defence as required under S.340(2), Cr.P.C., then refusal of Trial Court, declining the mandatory provisions of law, to let him be his own witness, was illegal

Trial Court, having refused to receive defence evidence of accused, had not only committed illegality but also failed to provide fair trial to the accused as guaranteed under Art. 10-A of the Constitution

Accused had right to give evidence in his defence, as provisions of Ss.340(2) & 265-F(6), Cr.P.C. were mandatory in nature

High Court, setting aside impugned order, allowed accused to adduce evidence in his defence and to make statement under S. 340(2), Cr.P.C.

Revision petition was accepted in circumstances.

2016 PCrLJ 1124 PESHAWAR-HIGH-COURT Judicial Precedent

S. 265-FEvidence of prosecutionScope

Under S. 265-F(1), Cr.P.C., if a witness, who is acquainted with the facts of the case and who has not been produced by prosecution in the first instance, is desired to be summoned through court, the same is subject to permission of the court

In view of S. 265-F(3), Cr.P.C., court may refuse to summon any such witness mentioned in S. 265-F(2), Cr.P.C., if the court is of the opinion that the witness is being called for purpose of vexation or delay or defeating the ends of justice

Court, however, has no such choice to refuse to examine any witness produced by prosecution under S. 265-F(1), Cr.P.C.

2016 PCrLJ 1124 PESHAWAR-HIGH-COURT Judicial Precedent

S. 265-FEvidence of prosecutionScope

Section 265-F(1), Cr.P.C. makes it mandatory for trial court to take all such evidence as may be produced in support of prosecution case

No restriction exists for prosecution to produce evidence of its choice or to apply for permission of the court in this regard.

2016 PCrLJ 1124 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 265-F, 265-C, 540, 161 & 173Evidence of prosecutionPower to summon material witnesses or examine person presentExamination of witnesses by policeSupply of statement and documents to accused

No embargo on examination of a person during course of trial, either in favour of prosecution or accused, who had not recorded his statement under S. 161, Cr.P.C.

Court had ample power to examine any person as witness in the case, irrespective of the fact whether his statement under S. 161, Cr.P.C. was recorded during the course of investigation or not

Person, who had been well cited as a witness both in the FIR and the report under S. 173, Cr.P.C., but his statement was not recorded under S. 161, Cr.P.C. could not be equated with a person who was neither cited as witness nor his statement was recorded during course of investigation

If witnesses' names appeared in the list of witnesses annexed with the report under S. 173, Cr.P.C. submitted before the trial court and once the prosecution was allowed to lead evidence, no special permission was required thereafter from the trial court for producing each and every witness

However, if prosecution or the court, in view of S. 265-F (2), Cr.P.C., desired to produce a person not cited as a witness in the calendar of witnesses, then the permission in that regard from the Trial Court became necessary

Provision of S. 265-F (2), Cr.P.C. was in addition to S. 265-F(1), Cr.P.C.

Name of the proposed prosecution witness was not only mentioned in calendar of witnesses but he had also been cited as an injured person in the FIR

Provisions of both Ss. 265-F(2) & 540, Cr.P.C. were, therefore, not applicable to the case

Revision petition was dismissed in circumstances.

2016 PCrLJ 1124 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 540 & 265-FEvidence of prosecutionPower to summon material witnesses or examine person presentScope

Section 540, Cr.P.C. is more exhaustive and confers vast jurisdiction upon the court even to examine a witness not summoned in the case or to examine any person in attendance if his evidence appears to be essential for just decision.