MUHAMMAD JAVED Versus State

KHAWAJA MUHAMMAD SAEED, C.J.--- This appeal has been filed against the judgment of the Shariat Court dated 9-3-2005, whereby the order passed by the trial Court on 19-1-2005, declining opportunity of cross-examination of Dr. Malik Mehmood Khan, prosecution witness, was upheld.

2. The facts relevant for the decision of this appeal precisely' stated are that the appellants are facing trial on the charge of alleged murder of one Muhammad Nazir Khokhar under sections 302 and 34, A.P.C. in the District Court of Criminal Jurisdiction, Kotli. The case is at the stage of prosecution evidence. On 19th January, 2005 Dr. Malik Mehmood Khan, P.W. who had conducted post-mortem of deceased, appeared in the Court for his evidence. On that date even though appellants had engaged four counsel from local bar, however, no one appeared on their behalf as such they requested for an adjournment to engage some other counsel from outside. The trial Court recorded the statement of Dr. Malik Mehmood Khan and provided opportunity of cross-examination to appellants. They refused to avail this opportunity and requested for adjournment to engage the counsel from outside. The Court closed the evidence of said witness and adjourned the case for evidence of prosecution witnesses Nos.9, 11, 13, 14 and 15. The appellants feeling prejudice by the order of trial Court assailed the validity of the same in revision before the Shariat Court. The Shariat Court vide judgment under challenge dated 9-3-2005 upheld the order of trial Court by adhering to the rule of expediency of the trial. This judgment has been assailed in present appeal before us.

3. In support of appeal it was vehemently contended by Mr. Abdul Majeed Mallick, the learned counsel for the appellants, that none of the counsel engaged by the appellants was present in the Court on the date when examination-in-chief of Dr. Malik Mehmood Khan was recorded in the Court. According to him his clients expressed their desire that they would like to engage counsel from outside for the purpose of cross-examination of the aforesaid witness but this prayer was declined by the trial Court in an arbitrary manner and this illegal order was upheld by the learned Chief Justice vide judgment under challenge in the present appeal. The learned counsel placed reliance upon a case titled Yahya Bakhtiar v. The State PLD 1983 SC 291 wherein it has been observed as under:

".... The right to cross-examine a witness of the prosecution is an important and vested right of the accused. The right is absolute and indefeasible and denial of the same would not entitle the Court to act on the evidence of witnesses not allowed to be cross-examined by him. According to Halsbury any party is entitled to cross-examine any other party who gives evidence, or his witnesses and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination."

He further emphasized that the cross-examination of prosecution witness is a legitimate right of accused person therefore, refusal to provide an opportunity to cross-examine any prosecution witness is unwarranted by law. According to him the statement of doctor who had conducted post-mortem is very important for the decision of the case either way, therefore, in the interest of justice that Court should have provided appellants an opportunity for cross-examination of said doctor witness because in case the cross-examination is not conducted, the statement of said prosecution witness shall be deemed to have been admitted by the appellants.

4. The learned Additional Advocate-General on the other hand defended the judgment under challenge. According to him the appellants had already engaged four counsel who have cross-examined the important witnesses. Therefore, if they had not turned up to defend them, their grievance shall be against their counsel and not against the Court. The case is under trial for the last four years. In these circumstances there was no justification to adjourn the case for cross-examination of aforesaid witness who had appeared on that date for his evidence.

5. We have given our due consideration to the arguments of the learned counsel for the parties and gone through the record of the case. In the very beginning let us make it clear that the cross-examination is a legal, legitimate and equitable right under law and this right cannot be denied to any party to the litigation in an arbitrary and unguided manner. No doubt in this case the appellants had engaged four counsel from local bar but none out of them appeared on the date when the case was called for hearing and the examination-in-chief of Dr. Malik Mehmood Khan, P.W., was recorded by the trial Court. The conduct of Advocates so engaged is very objectionable. In these circumstances the appellants were justified to request for adjournment so that they may engage some other counsel. From the order of trial Court it is clear that a request for adjournment was made on the ground that they would like to engage some counsel from outside Kotli. Before going further it appears appropriate to mention the concluding part of statement of Dr. Malik Mehmood Khan recorded by the trial Court on 19-1-2005, which is as follows : --

6. On the same date the Court ordered to summon witnesses Nos.9, 11, 13, 14 and 15 for evidence on the next day. This shows that there were yet many witnesses who had to appear in the Court for prosecution and case was adjourned for their evidence. In this case we cannot blame appellants as they had engaged four counsel from local bar and none out of them appeared on their behalf to defend them. The adjournment claimed for the purpose of cross-examination on their behalf was therefore, not unfair. Expeditious disposal of trials is no doubt a good thing but it should not be at the cost of fair and just trial as was rightly contended by the learned counsel for the appellants. In this case as still some other witnesses have to appear for prosecution, therefore, in our view the order passed by the trial Court on 19-1-2005 which was maintained by the Shariat Court vide judgment under challenge dated 9-3-2005 is illegal and unwarranted by law and rule of justice. By accepting this appeal the orders of trial Court and Shariat Court are set aside. Dr. Malik Mehmood Khan shall be resummoned for cross-examination. In the meantime the appellants shall engage some counsel if so advised. The parties are directed to appear before the trial Court on 26-11-2005 for further proceedings.

7. Along with this appeal an application was moved for suspension of order of Shariat Court, dated 9-3-2005 which was allowed by a learned Judge 'of this Court vide his order, dated 25-3-2005. As the appeal has been decided, therefore, no further order is required to be passed on this application. The same stands disposed of without any further order.

H.B.T./ 1 1/SC(AJ&K) Appeal accepted.