IN CRIMINAL
TRIAL, RIGHT OF CROSS EXAMINATION (BY THE ACCUSED) CANNOT BE CLOSED
By
MUHAMMAD IKRAM
(LLM)
149 District Courts,
As a
result of recent development in case law and steps taken by the Government of
the
Government
of the Punjab vide Notification No.28/2013-323 dated 20/01/2015 has enhanced
the scope of cross examination by the accused by providing him the facility of
a State paid Counsel in such situations in which to delay the trial or due to
unavoidable circumstances, the accused fails to produce his Counsel for the
purposes of conduct of cross examination on his or her behalf. Sec-19(8,8a) of Anti Terrorism Act-1997 are also relevant.
It is
a common knowledge; Interrogation of a witness by the opposite party is called
cross examination. Cross Examination is particularity and peculiarity, a
product of the English Procedure and in the time of Bentham was completely
absent in other systems of procedures based upon the Roman. It is a vital
feature of all modern systems of evidence and as per frame of mind of professor
Wigmore, “the greatest Legal engine ever invented for
the discovery of truth (Wigmore Sec-1367). Right to
cross examine has also been guaranteed by I.C.T.Y and I.C.C.P.R.
In a
Criminal trial, a good cross examiner
may layout a foundation to weaken a prosecution case through the application of
alertness of mind during the exercise of cross examination. The object of cross
examination is two fold. One to
bring on record desirable facts of the case modifying the examination- in- chief or establishing the defense version of the accused. Secondly to impeach the credit of the witness. The right to
cross examination is both available to the prosecution as well as to the
accused. Article 44 of QSO 1984 is relevant if the preceding statement is
disagreed.
Formerly,
if during the course of criminal trial, the accused failed to produce or caused
to be produced his counsel, there was no embargo to close his right of cross
examination but a new situation has emerged and the criminal Courts are no more competent to close the
right of the accused to cross examine or examine a witness who has deposed
against him.
Time
and again it has been held by the Superior Courts that the cross examination by
an accused himself can never be a substitute for the cross examination carried
out by a trained Legal mind/Counsel. This view was formed in the case of Saeed Muhammad Shah v/s the State (1993 SCMR 550). A
criminal Court cannot in any way or manner whatsoever ask or compel the accused
to conduct cross examination himself, this view was taken in the case of Waqar v/s the State (2013 P.cr.LJ.1279). Article 10-A of
the Constitution 1973, ensures that no accused can remain unrepresented at the stage of cross examination.
High
Court rules and orders Chapter 24 part C (Volume 3) provides a facility of services of a counsel
to those accused whose alleged offences are that of Capital Charge or
punishable with death. Women prisoners even in other offences except summary
trials enjoy the same facility. Province
of the Punjab and its Government
has taken the lead vide Notification No.28/2013-323 dated 20/01/2015 to provide
the services of a counsel at State expenses even in those cases which are triable by Magisterial Courts. It is a sort of big Legal
Practical Advisory Services to the accused
community.
His
Lordship Mr Justice Mahmud Ahmad Bhatti
in the case titled Mujahid Hussain
v/s the State etc as reported in PLJ-2015 has held that instead of closing the
right of accused to cross examine, it is better to provide him the services of
a counsel at state expenses. A comprehensive procedure has been provided vide
the above quoted Notification for such services. A counsel engaged shall be paid
according to the amount prescribed for each Court right from Court of
Magistrate up to the Supreme Court of Pakistan. Question of fixation of fee, if
a defense counsel is engaged as per Law Department manual has also been
answered by LHC.
Conclusion:
It is
due to recent development, exercise of power by the Court to close the right of cross examination by
the accused has become a past and closed transaction as the facility for
provision of counsels for pauper accused at state expenses in every criminal charge has been made
available, as an alternative measure instead of destroying the right. Payment
to such counsels shall be made by D.C.O./P,G,P, as the case may be,
References:
1. Government
of the
2. (Wigmore Sec-1367)
3. Article 44 of QSO 1984
4. (1993 SCMR 550)
5. (2013 P.cr.LJ.1279)
6. Article
10-A of the Constitution of the Islamic
7. High Court rules and orders chapter 24 part C (Volume 3)
8. I.c.t.Y (International Criminal Tribunal for Yogoslavia)
9. I.c.c.p.R
10. Consultees__Mr Muhammad Naeem Noshahi DPP, Faisalabad, Mr
Muhammad Farooq Ahsan,
DDPP, Faisalabad, Mr Gulam Murtaza, Assistant Professor, College of Law, GCUF. Dr.
Muhammad Mumtaz, (Former Coordinator) Miss Maria Iqbal (LL.M,
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