MUHAMMAD IJAZ vs THE STATE
This matter arises from criminal appeals filed against the conviction and sentence of the appellants under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question centered on whether the conviction could be sustained when a material prosecution witness (P.W.6) was not subjected to cross-examination by the defence and no opportunity to do so was afforded, with court-posed questions acting as a purported substitute. The Federal Shariat Court held that the appellants were denied their inherent and basic right to cross-examine prosecution witnesses, constituting a flagrant breach of law and procedure. Without delving into the merits of the evidence on record, the court allowed the applications for suspension of sentence and granted post-arrest bail to the appellants subject to furnishing surety bonds. The key principle laid down is that court-questioning of a witness does not substitute for the fundamental right of the accused to cross-examine prosecution witnesses.
- Whether questions asked by the court can serve as a substitute for the cross-examination of a witness by the accused?
- Can a conviction be maintained when the accused is denied the opportunity to cross-examine a key prosecution eye-witness?
- Whether the appellate court can suspend the sentence and grant bail without going into the merits of the case when a fundamental procedural breach is established?
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
1. HAZIQUL KHAIRI, CJ.---In these two appeals the appellants were convicted under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for seven years' R.I. And fine of Rs.50,000 in default whereof to undergo R.I. For one year. They were also convicted under section 10(2) of the said Ordinance for 10 years' R.I. And fine of Rs.50,000 in default whereof to undergo R.I. For one year.
2. Both the sentences shall run concurrently under the two sections.
3. It is contended by the learned counsel for the appellants that the-case against them has not been proved and there are number of discrepancies in the deposition of witnesses. It was emphatically stated by him that there was flagrant breach of law and procedure as no opportunity whatsoever was given to the appellants to cross-examine P.W.6 who is an eye-witness and on whose deposition, the conviction against appellants was made. This position is admitted by learned counsel for the State as well as learned counsel for the complainant.
4. I have gone through the testimony of P.W.6 and noted that the Court has asked a number of questions to P.W.6 but he has not been cross-examined by the appellants nor there is anything to suggest that the appellants were given the opportunity of cross-examining P.W.6. And A they failed to avail it. It was further contended by the learned counsel for the appellants that questions asked by the Court in any case are not a substitute for cross-examination by the appellants who have inherent and basic rights under law to cross-examine a prosecution witness.
5. Without going into the merits of the case and the evidence on record, I am inclined to allow both the applications for suspension of sentence of the appellants, and accordingly grant bail to both the appellants in the sum of Rs.3 lac by each of them upon furnishing personal bail bonds by them with one surety in the like amount to the satisfaction of the learned trial Court.