PLJ
2011 Cr.C. (
Present:
Sh. Najam-ul-Hassan and Syed Mazahar Ali Akbar Naqvi, JJ.
MUHAMMAD
YASEEN alias MITHOO and another--Appellants
versus
STATE--Respondent
Crl.
Appeal No. 259 of 2002, decided on 8.4.2010.
Constitution
of
----Art.
10--Legal aspect of the matter--Article 10 of the Constitution of Islamic
Republic of Pakistan, guarantees legal aid to an arrested person. [P. 22] A
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
340(1)--Constitutional right--Protected by codified law--Section 340(1) Cr.P.C.
statutorily recognizes the right of an accused to be defended. [P. 22] B
----Chapter
24-C of volume III & Rule(1)--Basic Principle--"No one should be
condemned unheard"--A person arrested has a Constitutional right to the
services of a counsel, therefore he must be given reasonable opportunity to
engaged a counsel and the counsel engaged must be given reasonable opportunity
to defend him.
[Pp. 22 & 23] C & D
Qanun-e-Shahadat,
Order, 1984 (10 of 1984)--
----Art.
133(1)--Examinations of witnesses--Order of examinations--Witnesses shall be
first examined-in-chief then cross examined and then re-examined--Thus a
witness is to be first examined-in-chief and then if the adverse party
(accused) so desires it shall be allowed to cross-examine the witness--Held:
Cross-examination of a witness is not just a formality but is a various right
and best method of ascertain forensic thruth--If defence counsel is not
available at the relevant time, the Court is under obligation to cross-examine
the witnesses in order to ascertain truth. [P.
23] E
1997 MLD 1697, ref.
Qanun-e-Shahadat
Order, 1984 (10 of 1984)--
----Art.
161--Criminal procedure Code, 1898, S. 340--Article 161 & Section 340
ordain a trial Judge to discover or obtain proper proof of relevant facts and
in doing so authorizes him to put questions to witnesses towards his duty to do
complete justice which duty can only be performed if the Court scrutinizes the
testimonies by confronting and cross-examining witnesses to ascertain the
truth--Although such duty exists even when the accused is represented through
competent counsel but where the accused is unrepresented the dynamism of such
duty can well be appreciated. [P. 23] F
KLR 1986 Cr.C. 100, ref.
Duty
of Court--
----It
is duty of a trial Court to put questions to witnesses in order to ascertain
the truth--Although the Court should not assume the role of a defence counsel
but where not a single question was put to any one of the witnesses the
conviction and sentence of the appellant was set aside and case was remanded
for trial afresh--The Supreme Court has not only depreciated the practice of
trial Court to accept un-rebutted testimonies of prosecution witnesses in case
of unrepresented accused rather it has held that it is the obligation of the
trial Court to take into consideration all matters placed before it before
arriving at the conclusion whether a fact is proved or not. [P. 23] G
PLD 1987 SC 250, ref.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
540--Power to summon material witness or examine person present--Powers of
Court--Court has empowered to summon a witness even if he has already been
examined--Held: Provision of law is to empower the Court to adopt all possible
devices in accordance with law to discover the truth and thus a free hand has
been given to the trial Court even to re-summon or re-call a witness who has
already been examined in order to arrive a just decision of a case. [P. 24] H & I
Cross-examination--
----Legal
principal--Without cross-examination of a witness only examination-in-chief has
no legal value. [P. 25] K
----Ss.
302(b)/34/394/324 & 460--Criminal Procedure Code, 1898--S. 540--Conviction
and sentence recorded against appellant by trial Court--Challenge
to--Constitutional legal provision--Obligation of Court--Accused remained
present before trial Court on each and every date of hearing--Counsel did not
appear on some dates of hearing when the trial Court struck off the right to
cross-examine--Here lies the mistake--When defence counsel was constantly not
showing his appearance, it was the obligation of trial Court to appoint a
defence counsel at state expense to defend the cause of the accused or to offer
the accused persons to cross-examine the witnesses or even to itself
cross-examine both the witnesses in order to ascertain truth for just decision
of the case--Striking off the right of accused to cross examine the PWs, case
of accused has been prejudiced--If the counsel was not appearing to
cross-examine the witnesses then the accused should not have been penalized for
the absence of their advocate which was not fault of the accused--It was vested
right of the accused to be defended, closed their right of
cross-examination--Trial Court at one stage appointed a defence counsel to
defend the cause of appellant--Counsel made an application u/S. 540 Cr.P.C. but
trial Court did not decide the application--Defence counsel made another
application before transferee Court for summoning PWs as Court witness as both
PWs were the only material witnesses of the ocular account but trial Court
dismissed the same and even itself did not cross-examine said material
witnesses in order to ascertain the fact in issue--Court was unable to defend
the impugned conviction and sentences in absence of proper representation of
the appellants to cross-examine--Appeal accepted. [Pp. 24 & 25] J, L & M
Mr.
Maqsood Ahmed Buttar, Advocate for Appellant No. 1.
Ch.
Muhammad Anwar Bhinder, Advocate for Appellant No. 2.
Mr.
Imtiaz Hussain Jaffery, Advocate for Complainant.
Qazi
Zafar Iqbal, Addl. Prosecutor General for State.
Date
of hearing: 8.4.2010.
Judgment
Sh.
Najam-ul-Hassan, J.--Muhammad Yaseen alias Mithoo and Asghar Ali, appellants
were convicted and sentenced by the learned Sessions Judge, Sheikhupura in case
F.I.R. No. 264 dated 19.6.1999 registered at Police Station Bhikhi, District
Sheikhupura vide judgment dated 14.2.2002 as under:--
U/S. 302 (B)/34 P.P.C. To suffer death and also to pay Rs. 1,00,000/- each as compensation u/S. 544-A Cr.P.C. to the
legal heirs of the deceased.
U/S. 394/34 P.P.C. To suffer rigorous imprisonment for five years
each and fine of Rs.5000/- each or in default thereof to suffer three months
S.I. each.
U/S. 324/34 P.P.C. To suffer rigorous
imprisonment for five years each and fine of Rs.5000/- each or in default
thereto to suffer three months S.I. each.
U/S. 460/34 P.P.C. Five years rigorous imprisonment and a
fine of Rs.5000/- each.
The
sentences of imprisonment were directed to run concurrently.
2. Feeling aggrieved by the impugned conviction
and sentences the appellants have filed Criminal Appeal No. 259/2002 whereas
the learned trial Court has sent M.R. No. 175 of 2002 seeking confirmation of
death sentence awarded to the appellants. Both these matters are being disposed
of together through this single judgment.
3. The prosecution story as narrated in the
F.I.R. (Ex.PF) by Ijaz Ahmad complainant (PW.9) is that on 19.6.1999 at about
4. Muhammad Mansha, Sub-Inspector (PW.15)
conducted investigation of this case and found all the accused involved in the
present case. He prepared the challan and sent the accused to learned
5. At the commencement of trial, charge was
framed by the learned Anti Terrorism Court, No. 1, Lahore against the accused
persons to which they pleaded not guilty and claimed trial. The prosecution
produced as many as 16 witnesses in order to prove its case. It is to be noted
here there during trial, the matter was transferred to the Court of ordinary
jurisdiction.
6. At the conclusion of trial the learned trial
Court convicted and sentenced the appellants as noted above.
7. Learned counsel for the appellant at the very
outset has taken exception to the impugned conviction and sentences on the
legal plan that the appellants were not properly represented/defended before
the learned trial Court for an offence entailing capital punishment as their
right to cross-examine was struck off by the learned trial Court as such they
have been condemned unheard and that it was also a Constitutional right of the
appellant to be defended by an advocate which right has not been granted to the
appellant, as such the impugned conviction and sentences are illegal and are
not maintainable in the eye of law.
8. Having gone through the interim order sheet
of the learned trial Court, the learned Law Officer has not controverted this
position. However, the learned counsel for the complainant has laid much stress
on the point that ample opportunities were granted to the appellants to produce
their learned counsel but they failed to do so, as such the learned trial Court
was left with no option but to strike off their right of cross-examination and
to proceed with the trial.
9. We have heard the learned counsel for the
parties. Before entering into realm of merits of the case, we have to cross the
hurdle pointed out by the learned counsel for the appellant. We have gone
through the record in the light of this contention.
10. Charge in the present case was framed against
the accused persons on 4.4.2000 and the prosecution evidence was called for
11.4.2000 on which date learned counsel for the accused was not present and the
matter was adjourned to 20.4.2000 and then for 27.4.2000 when examination of
chief of four P.Ws. was recorded and the matter was adjourned for
cross-examination on the request of the learned defence counsel for 29.4.2000
on which date the learned defence counsel was present but the matter could not
be taken up and was adjourned to 4.5.2000. On the: said date also learned
counsel on behalf of the accused was present and the matter was adjourned to
11.5.2000 on which date the learned defence was stated to be indisposed and
request for adjournment was made on his behalf. On the next date of hearing
i.e. 15.5.2000 the learned defence counsel was present but the matter was
adjourned to 18.5.2000. On this date P.Ws. 1, 3 and 5 were cross-examined and
the trial was adjourned to 26.5.2000. Learned defence counsel was not present
on the said date and the trial was adjourned to 1.6.2000. The learned counsel
for the accused was present, however, the matter was adjourned to 8.6.2000,
23.6.2000, 15.7.2000, 29.7.2000 and 12.9.2000 but the learned counsel did not
appear. On 18.9.2000 cross-examination on two P.Ws. was completed and the
matter was adjourned to 2.10.2000 on which date learned defence counsel was
present and charge was amended and the matter was adjourned for 7.11.2000 on
which date learned counsel for both the parties were not present and the matter
was adjourned to 17.11.2000. The charge was amended on the said date and the
matter was adjourned to 6.12.2000, 19.12.2000, 9.1.2001 but the learned defence
counsel was not available. On 23.1.2001 evidence of P.Ws. 9 and 10 was recorded
and cross-examination was reserved on the request of the learned defence
counsel. On 31.1.2001 learned defence counsel submitted an application for
re-summoning of witnesses whose statements had been recorded before alteration
of charge. On 8.2.2001 the said application was allowed and the P.Ws. were
re-summoned for 15.2.2001 on which date and on subsequent dates i.e. 1.3.2001
19.3.2001 and 11.4.2001 the learned defence counsel did not turn up and on the
last mentioned date evidence of the P.Ws. 9 and 10 was closed striking off the
right of the accused to cross-examine the said P.Ws. On 24.4.2001 neither any
P.W. nor learned defence counsel appeared and the matter was adjourned to
7.6.2001. On the said date also learned defence counsel did not appear and the
accused showed their ignorance about absence of their counsel before the Court.
On the said date the learned trial Court appointed Ch. Azmat Khan, Advocate as
defence counsel at State expense and matter was adjourned to 20.6.2001 and to
12.7.2001 on which dates P.Ws. were not present. The learned defence counsel
filed an application under Section 540 Cr.P.C. for recalling P.Ws. 9 and 10 for
cross-examination. On the next date i.e. 24.7.2001 learned complainant counsel
was not present. On 18.9.2001 the trial was transferred to the Court of
ordinary jurisdiction. The learned
11. All the exercise taken above would show that
on each and every date of hearing, the accused were present in Court. On some
dates their learned counsel was not present when the learned trial Court struck
off right of the accused to cross-examine P.Ws. 9 and 10. It is worth
mentioning that the learned trial Court also did not consider it appropriate to
cross-examine these two material witnesses nor put any question to them.
12. Now we come to the legal aspect of the
matter. Article 10 of the Constitution of Islamic Republic of Pakistan
guarantees legal aid to an arrested person. It says:
"(1) No person who is arrested shall be
detained in custody without being informed, as soon as may be of the grounds
for such arrest nor shall he be denied the right of consult and be defended by
a legal practitioner of his choice."
This
Constitutional right has been protected by the codified law. Section 340(1)
Cr.P.C. statutorily recognizes the right of an accused to be defended. The said
provision of law reads as under:
"Any
person accused of an offence before a Criminal Court, or against whom
proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."
This
right of an accused of an offence entailing capital punishment is further
elaborated under Chapter 24-C of Volume-III of the Rules and Orders of the
Lahore High Court,
"If
the accused is unrepresented in a Sessions case and cannot afford to engage a
counsel the Sessions Judge shall make arrangement to employ a counsel at Government
expense. Counsel in such cases should be appointed well in time to enable him
to study the documents mentioned in Section 265-C of the Code of Criminal
Procedure."
The
above provisions would show that a person arrested has a Constitutional right
to the services of a counsel, therefore, he must be given reasonable
opportunity to engage a counsel and the counsel engaged must be given
reasonable opportunity to defend him. The basic principle underlying this
exercise appears to be that no one should be condemned unheard.
Chapter
X of the Qanun-e-Shahadat Order, 1984 deals with examinations of witnesses.
Article 133 of the Order envisages order of examinations. According to
sub-Article (1) witnesses shall be first examined-in-chief, then (if the
adverse party so desires) cross-examined, then (if the party calling him so
desires), re-examined. Thus a witness is to be first examined-in-chief and then
if the adverse party (accused) so desires it shall be allowed to cross-examine
the witness. It is worth mentioning that cross examination of a witness is not
just a formality but is a valuable right and best method to ascertain forensic
truth. Therefore, if the learned defence counsel was not available at the
relevant time, the Court was under obligation to cross-examine the witnesses in
order to ascertain truth. The learned trial Court even did not offer the
appellants to cross-examine the witnesses by themselves. It has been held in
Wali Dad v. The State (1997 MLD 1697) that till such time the Court puts up
cross-examination on behalf of an unrepresented accused it would not discharge
its duty embodied in Section 340 Cr.P.C. It is not only Section 340 of the
Cr.P.C. alone but also Article 161 of the Qanun-e-Shahadat Order which ordain a
trial Judge to discover or obtain proper proof of relevant facts and in doing
so authorizes him to put questions to witnesses towards his duty to do complete
justice which duty can only be performed if the Court scrutinizes the
testimonies by confronting and cross-examining witnesses to ascertain the
truth. Although such duty exists even when the accused is represented through
competent counsel but where the accused is unrepresented the dynamism of such
duty can well be appreciated. It has been held in Nazir Hussain v. Muhammad
Yaqub (KLR 1986 Cr.C. 100) that it is the duty of a trial Court to put
questions to witnesses in order to ascertain the truth. It has been laid down
that although the Court should not assume the role of a defence counsel but
where not a single question was put to any one of the witnesses the conviction
and sentence of the appellant was set aside and the case was remanded for trial
afresh. The Supreme Court has not only depreciated the practice of trial Court
to accept un-rebutted testimonies of prosecution witnesses in case of
unrepresented accused rather it has held that it is the obligation of the trial
Court to take into consideration all matters placed before it before arriving
at the conclusion whether a fact is proved or not. In this respect we are
fortified by the dictum laid down in S. Mahmood Alam Shah v. The State (PLD
1987 SC 250)
13. In order to arrive at a just decision the
Court has been empowered to summon a witness even if he has already been
examined. Section 540 Cr.P.C. may be referred in this regard which reads as
under:
"Power to summon material witness or examine person
present.
Any Court may, at any stage of any inquiry, trial or other proceeding under
this Code, summon any person as a witness, or examine any person in attendance,
though not summoned as a witness, or re-call and re-examine any person already
examined; and the Court shall summon and examine or re-call and re-examine any
such person if his evidence appears to it essential to the just decision of the
case."
A
bare reading of the above Section would show that the main theme underlying
this provision of law is to empower the Court to adopt all possible devices in
accordance with law to discover the truth and thus a free hand has been given
to the learned trial Court even to re-summon or re-call a witness who has
already been examined in order to arrive at just decision of a case.
14. Having thus gone through the Constitutional
as well as legal provisions on the subject, we come to the present case. The
accused remained present before the learned trial Court on each and every date
of hearing. However, their learned counsel did not appear on some dates of
hearing when the learned trial Court struck off the right to cross-examine.
Here lies the mistake. When the learned defence counsel was constantly not
showing his appearance, it was the obligation of the learned trial Court to
appoint a defence counsel at State expense to defend the cause of the accused
or to offer the accused persons to cross-examine the witnesses or even to
itself cross-examine both the witnesses in order to ascertain truth for just
decision of the case. Thus by striking off the right of the accused to
cross-examine the P.Ws. the case of the accused has been prejudiced. Therefore,
if the learned defence counsel was not appearing to cross examine the witnesses
then the accused should not have been penalized for the absence of their
advocate which was not fault of the accused. They even showed their ignorance
about non-appearance of their learned counsel. However, the learned trial Court
without realizing that it was vested right of the accused to be defended,
closed their right of cross-examination. It may be mentioned that the learned
trial Court at one stage appointed a learned defence counsel to defend the
cause of the appellant. The said learned counsel made an application under
Section 540 Cr.P.C. on 12.7.2001 but the learned trial Court did not decide the
said application which ought to have been decided before proceeding further in
the trial. Later on the learned defence counsel made another application under
Section 540 Cr.P.C. before the learned transferee Court for summoning P.Ws. 9
and 10 as Court
witness on 10.1.2002
as both the
P.Ws. were the
only material witnesses of the ocular account but the learned trial
Court dismissed the same and even itself did not cross-examine said material
witnesses in order to ascertain the fact in issue.
15. It is settled legal principal that without
cross-examination of a witness only examination-in-chief has no legal value.
16. Thus looked at from whatever angle we are
unable to defend the impugned conviction and sentences in absence of proper
representation of the appellants to cross-examine.
17. Consequently, Cr. Appeal No. 259 of 2002 is
accepted, impugned conviction and sentences are set aside and the case is
remanded to the learned trial Court for fresh decision after giving the
appellants opportunity to cross-examine P.Ws. 9 and 10 and if they are unable
to engage a counsel of their choice, the learned trial Court shall provide
legal assistance to the appellants.
18. Murder Reference No. 175 of
19. Since the occurrence took place in the year
1999, and the parties have already suffered a lot, therefore, the learned trial
Court is directed to conclude the matter within four months from the date of
receipt of this judgment.
(A.S.) Appeal
accepted.