Muhammad Nazir vs The State
This criminal petition challenges an order passed by the Special Judge, Anti-Corruption, Sargodha, which dismissed the petitioner's application under Section 540 of the Code of Criminal Procedure 1898. The petitioner sought to recall a prosecution witness (PW-3) for cross-examination after the trial court had previously closed this right due to the absence of the petitioner's counsel. The core legal question was whether the right to legal representation and cross-examination can be forfeited on procedural grounds, such as the failure to provide a High Court cause list, and whether the trial court correctly characterized the presence of counsel as a mere 'facility' rather than a right. The High Court held that the right to engage counsel and cross-examine witnesses is a cherished and valuable constitutional right, not a mere facility granted by grace. Consequently, the High Court set aside the impugned order, ruling that such a valuable right cannot be denied on trivialities, and directed the trial court to afford the petitioner a reasonable opportunity to cross-examine the witness.
- Is the right to engage a defence counsel a mere facility or a constitutional right of an accused person?
- Can a trial court close the right to cross-examine a prosecution witness due to the failure of counsel to produce a High Court cause list?
- Does the denial of the right to cross-examine a witness on trivial grounds constitute a valid exercise of judicial discretion?
- Section 499, 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
- Constitution of the Islamic Republic of Pakistan 1973
JUDGMENT M. BILAL KHAN, J.-~ The petitioner js facing trial before the learned Special Judge, Anti- Corruption, Sargodha for offences under Sections 499, 420, 467,468, 471, PPC in case F.I.R. No. . 27, dated 18.2,4997 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 (PW-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 who 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 Addl. 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 Addl.
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 conditions 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 PW-3.