Rao Khalid Iqbal vs The State and another
This criminal revision petition challenges the order of the Special Judge (Central), Multan, which dismissed the petitioner's application to recall an earlier order closing his right to cross-examine prosecution witnesses in a corruption case. The petitioner had repeatedly sought adjournments due to the unavailability of his counsel, leading the trial court to close his right to cross-examine. The core legal question was whether the trial court acted correctly in closing the right of cross-examination when the accused, though unrepresented, lacked the expertise to conduct it himself. The High Court held that the right to cross-examine is a fundamental ingredient of a fair trial and due process under the Constitution. It determined that the trial court's failure to facilitate effective cross-examination, even when the accused was unrepresented, prejudiced the defense. Consequently, the Court set aside the impugned orders, allowing the petitioner one final opportunity to cross-examine the witnesses, while stipulating that failure to do so would result in the case proceeding on the available evidence. The principle established is that trial courts must ensure the fairness of proceedings by facilitating cross-examination, as unrepresented accused cannot be expected to perform this specialized task.
- Does the right to cross-examine prosecution witnesses constitute a fundamental ingredient of a fair trial?
- Is a trial court obligated to facilitate cross-examination when an accused is unrepresented by counsel?
- Can a trial court close the right of cross-examination solely because an accused lacks the expertise to perform it themselves?
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 420, Pakistan Penal Code 1860
- Section 409, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
ORDER
MUHAMMAD WAHEED KHAN, J. Through the instant criminal revision petition under sections 435, 439 read with section 561-A, Cr.P.C., the petitioner has challenged the vires of order dated 08.03.2018 passed by the learned Special Judge (Central), Multan, whereby application filed by him for re-calling order dated 17.09.2015 regarding closing his right of cross-examination on PWs.1, 5 and 6, was dismissed.
2. Precisely, the facts of the case of the prosecution are that the petitioner was sent to face the trial by the investigating agency before the learned Trial Court in case FIR No.37/2013 dated 27.11.2013 registered under sections 420, 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at Police Station Railways Cantt., Multan. He was formally indicted on 03.04.2014 and the evidence of some of the witnesses was recorded. During the proceedings examination-in-chief of PW.1 was recorded on 26.09.2014 and that of PWs 5 and 6 on 19.03.2015 and the cross-examination over them was reserved on the request of the defence. On 17.07.2014 and 19.03.2015 PW.1 was in attendance but on request of the accused, adjournment was granted to him on the ground, that his learned counsel was not available. Thereafter these PWs appeared on 30.04.2015 but again the defence counsel did not cross-examine them and the case was adjourned on his request with the warning that no further adjournment in this context would be given. On 17.09.2015, the accused again sought adjournment and the learned court while realizing that the accused was intentionally delaying the trial, asked the accused to himself cross-examine the PWs but he declined to do so, consequently, his right to cross-examine them was closed. Thereafter, the petitioner made an application before the learned Trial Court, whereby it was requested that the order dated 17.09.2015 may be re-called. The learned Trial Court vide impugned order dated 08.03.2018 dismissed the same, mainly on the ground that this would tantamount to review the order, regarding which the court lacks the jurisdiction.
3. I have heard learned counsel for the parties and gone through the available record.
4. I have noticed that cross-examination on the witnesses could not be conducted due to the non- availability of the learned counsel for the accused and apparently it appears that by doing so, the petitioner was using delaying tactics to conclude the trial. There is no denial to the fact that in matters other than entailing capital punishment, no right is explicitly available by Statute 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-examination on behalf of an unrepresented accused. On going through order dated 17.09.2015,. I have noted that although the learned Trial Court has asked the accused to cross-examine the witnesses himself but I feel that the petitioner had not sufficient expertise to cross-examine the witnesses and it cannot be considered as substitute to the cross-examination conducted by a defence counsel. Reliance in this regard is placed on the dictum laid down by the Supreme Court of Pakistan in case of "Abdul Ghafoor v. The State" (2011 SCMR 23) and a judgment passed by Sindh High Court in case of "Waqar and another v. The State" (2013 PCr.LJ 1279). The top Court in a recent pronouncement, rendered in the case of "Muhammad Bashir v. Rukhsar and others" (PLD 2020 SC 334), has held that the Constitution of Islamic Republic of Pakistan mandates "fair trial and due process" and the accused must be provided with an opportunity to cross-examine witnesses, who deposed against him. So, providing him an opportunity to cross-examine the witnesses is one of the necessary ingredients to ensure -the fairness of trial. It has been further reiterated by the Supreme Court in the above referred judgment that the right of cross-examination is the right of the accused, which right he/she may forgo but one which he/she cannot be deprived of. In case of "Abdul Rauf v. The.
State" (PLD 2001 Lahore 463) rendered by a learned Division Bench of this Court, it has been observed that if the prosecution witnesses not cross-examined, then an accused person's case can be seriously prejudiced and it has also been held that the cross-examination is a specialized job, which can only be made by a counsel and there is no denial of the fact that in the instant case, not a single question was put by the learned Trial Court, to ascertain the truth or falsity of the prosecution witnesses. The Superior Court of the country has not only deprecated 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. Reliance in this regard is placed on the, dictum laid down by this Court in case of "Khizar Hayat v. Judicial Magistrate and 2 others" (2015 PCr.LJ 1566).
5. So, under the circumstances, I consider that for the sake of safe criminal administration of justice, it would be in the fitness of things, if the learned defence counsel be given one more opportunity to cross-examine the witnesses, hence, this petition is allowed, the orders dated 08.03.2018 and 17.09.2015 are set aside and the learned Trial Court is directed to give one more chance to the petitioner to complete the cross-examination. However, if the witnesses are not cross-examined on the date fixed by the court, the petitioner would not be given any other opportunity and the case would be decided on the strength of available evidence.