PLJ 2011 Cr.C. (Lahore) 16 (DB)

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 Pakistan, 1973--

----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

Lahore High Court Rules and Orders--

----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

Pakistan Penal Code, 1860 (XLV of 1860)--

----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 2.15 a.m. (night) he alongwith his family members were sleeping in the house when Muhammad Yaseen alias Mithoo, Asghar Ali, appellants and Tanveer Ahmad alias Sheema proclaimed offender armed with deadly weapons entered into the house by scaling the wall with the intention to commit dacoity. They awoke his wife Mst. Razia Parveen and demanded keys on pistol point; opened the safe of Almirah and started searching. At that time Mst. Razia raised hue and cry. The complainant also came out of his room and grappled with the accused persons. During scuffle, Asghar Ali, appellant fired with his carbine at Mst. Razia Parveen which hit on her left armpit who fell down. The accused persons fled from the spot and also took away cash of Rs.2,15,000/-, gold ornaments, and other valuables. The complainant took the injured to DHQ, Hospital, Sheikhupura but she succumbed to the injuries on the way. Hence, the F.I.R.

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 Anti Terrorism Court-I Lahore to face trial.

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 Addl. Sessions Judge/trial Court re-summoned P.Ws. 9 and 10 for 8.12.2001. However, on the said date on pointing out by the learned complainant counsel that right to cross-examine these witnesses had already been struck off, the learned trial Court re-called its earlier order of summoning the said P.Ws.. On 10.1.2002 once again the learned defence counsel submitted an application under Section 540 Cr.P.C. for summoning P.Ws. 9 and 10 which was dismissed. Thereafter on 23.1.2002 and on 26.1.2002 learned defence counsel was present but the P.Ws. were not in attendance. On 29.1.2002 the prosecution evidence was closed.

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, Lahore. Rule (1) of the said Rules reads as under:

"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 2002 in the given circumstances is answered in negative and sentence of death is not confirmed.

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.