MUHAMMAD NASIR vs THE STATE

ORDER

1. ' ZIA PERWAZ, J.---This revision is directed against the impugned order of the learned Sessions Judge, Karachi South in SC No,499 of 2004 whereby the application for recalling of witnesses was dismissed in view of earlier order dated 16-4-2005 passed by the learned Court on an application moved under section 540, Cr.P.C.

2. ' Contention of the learned counsel is that the fact that neither the Advocate could appear nor any adjournment application was sent by him, goes to show that the applicant could not contact his Advocate. While the learned counsel conceded that the responsibility vests squarely in the defence and their counsel to be vigilant in the proceedings, and not to take undue liberties in the proceedings before the Court, he, at the same time, stated that facts beyond the control of the parties as in the instant case, required to be considered and call for a sympathetic consideration as valuable rights of the applicant are involved which may ultimately culminate in his conviction if opportunity to cross-examination of the witnesses is not afforded to him. He has placed reliance on the case of Altaf Hussain Shamim v. The State (PLD 1992 Kar. 91), Khizar Hayat v. The State (2001 YLR 19), Najmul Hassan v. The State (2002 MLD 477) and Abdul Raoof v. The State (PLD 2001 Lahore 463).

3. ' Ms. Shahida Jatoi, learned counsel for the State, has no objection if an opportunity is provided to the defence for cross-examination of the witnesses.

4. At present the case is stated to be fixed for recording of the statement of accused under section 342, Cr.P.C. After prosecution closed its side. It appears that the application has been made after the examination of the witnesses was concluded.

5. ' While disposing of the case of Altaf Hussain Shamim (supra), a learned single Judge of this Court observed as under:- "7. The opportunity to cross-examine a witness contemplated by the law must be real, fair and reasonable. It is not an empty formality but a valuable right and a best method for ascertaining forensic truth. The applicant who is not a trained person in legal procedure was not expected to cross-examine the prosecution witness in the absence of his Advocate. It may be noted that the applicant cannot be penalized for the absence of his Advocates who had chosen to remain absent on the date when the case proceeded against him. The applicant fears and his fears are not ill- founded that if the witnesses against him are not subjected to cross-examination, he may be straightaway convicted for putting up no defence."

6. ' The same view finds support in the subsequence cases of Khizar Hayat, Najamul. Hassan and Abdul Raoof (supra).

7. For the foregoing reasons, this application is allowed. The impugned Order is set aside. The applicant may be afforded opportunity for cross-examining the witnesses of the prosecution after re-summoning them on the next date of hearing.