MUHAMMAD NAZIR vs THE STATE
The petitioner challenged an order passed by the Special Judge, Anti-Corruption, whereby his application under section 540, Code of Criminal Procedure 1898 for recalling a prosecution witness for cross-examination was dismissed and his right to cross-examine was closed due to the absence of his counsel and failure to provide a High Court cause list. The core legal question was whether the right to be defended by counsel and to cross-examine witnesses could be denied on such grounds. The Lahore High Court held that the right to defend oneself and engage counsel is a cherished and valuable constitutional right rather than a mere facility, and that valuable rights of an accused cannot be taken away on trivialities or treated like civil proceedings. The petition was consequently allowed, the impugned order set aside, and a reasonable opportunity granted to cross-examine the witness.
- Is the production and assistance of a defence counsel merely a facility or a constitutional right of an accused person?
- Can the right to cross-examine a prosecution witness be closed solely due to the failure of counsel to append a High Court cause list with an adjournment application?
- Whether a trial court can treat criminal proceedings with the strict technicalities applied to civil suits regarding the closure of a valuable defence right?
- Section 409, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 467, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 540, Code of Criminal Procedure 1898
- Article 1973, Constitution of the Islamic Republic of Pakistan, 1973
' The petitioner is facing trial before the learned Special Judge, Anti-Corruption, Sargodha for offences under sections 409, 420, 467, 468, 471, P.P.C. In case F.I.R. No,27, dated 18-2-1997 registered at Police Station Cantt. Sargodha.
2. During the course of trial the petitioner made an application under section 540, Cr.P.C. Praying therein that Rao Muhammad Younas (P.W.3) who was the complainant of the case may be allowed to be cross-examined. The right of cross-examination had been closed on 21-7-2003 as his counsel had failed to turn up and had not appended the cause list of the High Court with his application for adjournment. While turning down the petitioner's application under section 540, Cr.P.C. The learned Special Judge in paragraph No,4 of the impugned order observed as under:-- "Production of the counsel is a facility to the accused that should have been careful and vigilant for his defence at the relevant time. He did not produce defence counsel and was afforded opportunity but it was not availed and hence right to cross-examine was closed."
3. I asked the learned Additional Advocate-General if the so-called production of the counsel for an accused was a "facility" granted out of grace or benevolence or was a right guaranteed to an accused under the Constitution of the Islamic Republic of Pakistan, 1973. The learned Additional Advocate-General in all fairness submitted that to defend oneself and to engage a defence counsel is a right but at the same time he submitted that the said right is subject to reasonable condition and the same cannot be exploited by any accused person to defeat or delay the trial.
4. I have gone through the record and it appears that the right to cross-examine the star prosecution witness had been closed only because the learned counsel who applied for adjournment had not appended the cause list of the High ,Court in order to support his claim that he had to appear in the High Court. The exercise of right to cross-examine a witness is to be guided by equitable and fair conditions. It is also to be kept in mind that such Valuable right cannot be taken away on trivialities. The tenor of the order shows that the learned Special Judge treated this case as if he was proceeding with a civil suit. The learned Special Judge has also failed to appreciate that "production of defence counsel" is not a facility but is a cherished and valuable Constitutional right of an accused person.
5. Resultantly this petition is allowed and the impugned order, dated 8-6-2004 is set aside. The petitioner shall be afforded a reasonable opportunity to cross-examine Rao Muhammad Younus P.W.3.