MUHAMMAD NAZIR Versus State
This criminal revision 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 for cross-examination after his right to cross-examine had been closed due to his counsel's failure to appear and provide proof of engagement in the High Court. The core legal question was whether the right to legal representation and cross-examination is a mere facility or a fundamental right, and whether it can be forfeited on procedural technicalities. The Court held that the right to engage counsel and cross-examine witnesses is a cherished and valuable constitutional right, not a mere facility granted out of benevolence. It emphasized that such rights cannot be denied on trivial grounds or procedural defaults. Consequently, the Court set aside the impugned order, ruling that the trial court erred in treating the matter as a civil suit and failing to uphold the accused's right to a fair trial, thereby allowing the petitioner a reasonable opportunity to cross-examine the witness.
- Is the right to engage a defence counsel and cross-examine witnesses a mere facility or a constitutional right?
- Can a trial court close the right to cross-examine a prosecution witness based solely on the failure of counsel to provide a cause list of the High Court?
- Should criminal trials be conducted with the same procedural strictness as civil suits regarding the attendance of counsel?
- 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 10, 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 se.tion 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 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 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 railed 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.
N.H.Q./M-1155/L Revision accepted.
Cited by 1 case
- JAVAID IQBAL and 3 others vs THE STATE 2010 MLD 1527