2015 P Cr. L J 1566
اگر کوئی مقدمہ کافی عرصہ سے زیر التواء ہو تو متاثرہ فریق آئین کے آرٹیکل ۱۹۹ کے تحت ہائیکورٹ سے ڈائریکشن لے سکتا ہے اور ہائیکورٹ دن مقرر کر کے ٹرائل کورٹ کو مقررہ وقت کے اندر مقدمہ کا فیصلہ کرنے پر پابند کرتی ہے ۔
Penal Code (XLV of 1860)---
----S. 489-F---Qanun-e-Shahadat (10 of 1984), Arts.133 & 134---Criminal Procedure Code (V of 1898), S.561-A---Dishonestly issuing a cheque---Right of cross-examination, closing of---Accused avoiding to cross-examination witness---Duty of court---Quashing of order---Cross-examination of witness---Document not part of challan was produced during cross-examination of witness---Admissibility---Statement of complainant was recorded during the trial---Partial cross-examination on the complainant was conducted by defence counsel, while for remaining cross-examination, defence counsel showed his inability, upon which Trial Court closed the right of further cross-examination---Revision petition, filed against order of the Trial Court was accepted with the observation that Trial Court after receiving back the judicial record would fix a date giving one more opportunity to defence counsel to conclude the cross-examination---Validity---Objection that the document which was not part of challan, same could not be exhibited or taken into consideration during cross-examination of witness, was devoid of force, as same was produced by the witness on the asking of defence counsel during cross-examination, and same was exhibited by the Trial Court---No bar existed to produce document, especially, when a particular question was asked by the defence counsel to witness regarding the production of the same before the Police during investigation---Court could not refuse to admit the document which was relevant for the decision of the case---Search of truth was the primary duty imposed upon the court for administration of justice and court could not base its opinion, merely on technicalities---No right was explicitly available to accused to secure legal representation at State expenses in the matters, other than entailing capital punishment---In such like cases, it was the duty of the Trial Court itself to put up a cross-examination on behalf of an un-represented accused, or who himself intentionally avoiding to cross-examine the witness---When defence counsel was constantly, not showing his appearance, it was the obligation of the Trial Court to put question itself to defend the cause of accused, or to offer accused to cross-examine the witness, in order to ascertain truth for just decision of the case---Cross-examination was a valuable right of an accused, and was the only vehicle through which the truth and falsity of the witness could be determined---Trial Court would be at liberty to receive in evidence any admissible document despite the same was not annexed with report under S.173, Cr.P.C., if said document would meet the standards of admissibility, and was necessary for the just decision of the case and also would allow cross-examination thereon---Trial Court was directed by High Court to give one more chance to the accused to complete cross-examination.
Muhammad Abbas for Petitioner.
Qaiser Mushtaq, ADPP for the State on Court's call.
KHIZAR HAYAT VS JUDICIAL MAGISTRATE
2015 P Cr. L J 1566
[Lahore]
Before Sikandar Zulqarnain Saleem, J
KHIZAR HAYAT---Petitioner
versus
JUDICIAL MAGISTRATE and 2 others---Respondents
Criminal Miscellaneous No.18-M of 2014, decided on 05/12/2014.
ORDER
SIKANDAR ZULQARNAIN SALEEM, J.---Since crucial question of law is involved as how a criminal Court should construe lack of legal representation on part of accused who perhaps for some reasons was not able to cross-examine the witness, when the witness is material this petition is admitted for regular hearing and with the concurrence of learned counsel for the parties is decided today on merits.
2.This is an application seeking annulment of the order passed by the learned Judicial Magistrate dated 12-9-2013 qua the closing of the right of cross-examination.
3.Brief facts of the case are that petitioner was arraigned as an accused in case FIR No.755/12 dated 19-9-2012 registered under section 489-F, P.P.C. at Police Station Pir Wadhai Rawalpindi at the instance of Col. (Retd.) Muhammad Hassan Khan complainant alleging therein that in pursuance of an Iqrarnama the petitioner had issued a cheque amounting to Rs.2,58,00,000 which was dishonoured on presentation before the concerned bank. After registration of FIR, the petitioner was challaned to face trial. During trial, statement of Col-(R,) Muhammad Hassan Khan complainant was recorded on 3-1-2013 and on 12-9-2013, partial cross-examination on the complainant was conducted by the learned defence counsel while for remaining cross-examination, the learned defence counsel showed his inability upon which the learned trial court vide order dated 12-9-2013 closed the right of further cross-examination. Against the said order, revision petition was preferred before the learned Additional Sessions Judge, Rawalpindi and vide judgment dated 25-1-2013, said revision petition was accepted with the observations that the learned trial court after receiving back the judicial record shall fix a date giving only one more opportunity to the learned defence counsel to conclude the cross-examination on PW-1 and furthermore the learned trial court shall be at liberty to receive in evidence any admissible document despite the fact that same is not annexed with report under section 173, Cr.P.C. if the said document meets the standards of admissibility and is necessary for the just decision of the case and also shall allow cross-examination thereupon. Hence, this petition before this Court.
4.Heard. Record perused.
5.The objection raised by the learned counsel that the document which was not part of challan the very same document cannot be exhibited or taken into consideration during cross-examination of witness, is devoid of force, as the same was produced by the witness on the asking of the learned defence counsel during cross-examination and said document was accordingly exhibited by the trial court. There is no bar to produce documents especially when a particular question is asked by the defence counsel to witness regarding the production of same before police during investigation. One may visualize a situation in which valuable documents may have been omitted to be placed on record by Investigating Officer during the investigation and yet in the interest of justice they may be admitted during trial. The mechanism of courts and procedure is only intended to advance justice. Accordingly when the defence itself had asked for the production of the document, the court cannot refuse to admit the documents which are relevant for the decision of the case and the objection raised by the defence subsequently is not well founded. Search of truth is the primary duty imposed upon the court for administration of justice and court cannot base its opinion merely on technicalities.
6.Furthermore, cross-examination on the witness could not be conducted due to the non-availability of either of the petitioner or his counsel, further it appears that in order to cause delay in the conclusion of trial delaying tactics were being employed by the petitioner. Due to the said reason learned trial court had struck off right of the accused to the witness. Though the fault lies on the part of the petitioner-accused. The question involves is as how a criminal Court should construe lack of legal representation on part of accused who perhaps for some reason was not able to cross-examine the witnesses. There is no denial to the fact that in matters other than entailing capital punishment no right is explicitly available by Statue or rules to the accused to secure legal representation at State expenses, however, in such like cases it becomes the duty of the trial judge himself to put up a cross on behalf of an un-represented accused or who himself intentionally avoiding to cross the witness.
Honourable Supreme Court has not only depreciated the practice of the court to accept the 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 fact proved or not.
7.Now come to present case when the learned defence counsel was constantly not showing his appearance, it was the obligation of the learned trial court to put questions himself to defend the cause of the accused or to offer the accused to cross-examine the witness in order to ascertain truth for just decision of the case. There is no denial of the fact that cross-examination is a valuable right of an accused and is the only vehicle through which the truth and falsity of the witness can be determined. The learned Additional Sessions Judge, Rawalpindi has rightly held that the learned trial court shall be at liberty to receive in evidence any admissible document despite the fact that same is not annexed with report under section 173, Cr.P.C. if the said document meets the standards of admissibility and is necessary for the just decision of the case and also shall allow cross-examination thereupon. Hence, this petition is partially allowed and the learned trial court is directed to give one more chance to the petitioner to complete the cross-examination. However, if the witness is not cross-examined on the date fixed by the court, the petitioner would not be given any other opportunity and the case would not be adjourned for any other date for that purpose.
HBT/T-5/LOrder accordingly.
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