MUHAMMAD ISHTIAQUE alias GUTKO vs THE STATE
This criminal revision application arises out of proceedings under the Prohibition (Enforcement of Hadd) Order, 1979 and the Control of Narcotic Substances Act, 1997, where the applicant was facing trial for possession of narcotics. The core legal question was whether the trial court erred in refusing to recall prosecution witnesses for re-examination after it was discovered that the counsel who previously cross-examined them was an impostor and a serving police official. The Sindh High Court held that since the person who conducted the cross-examination was not a competent advocate at the relevant time and failed to conduct a proper cross-examination, serious prejudice was caused to the accused. The impugned order of the trial court was set aside and the application was allowed, directing the trial court to recall and re-examine the prosecution witnesses to afford the defence full opportunity of cross-examination.
- Whether an accused is entitled to recall prosecution witnesses for cross-examination when the previous counsel was an impostor and a serving police official?
- Does cross-examination conducted by an unqualified or unauthorized person cause serious prejudice to the accused warranting re-trial or re-examination?
- Can a trial court refuse to recall prosecution witnesses under circumstances where the defence counsel was unauthorized to practice at the time of examination?
- Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 9-B, Control of Narcotic Substances Act, 1997
ORDER
1. ' MUHAMMAD ROSHAN ESSANI, J.--- The applicant/accused Muhammad Ishtiaq alias Gutko is facing trial in Sessions Case No,27 of 1998 before the learned Special Judge, Sukkur under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, which arose out of F.I.R. No,68 of 1998 Police Station "C" Section, Sukkur.
2. ' The brief facts of the case are that applicant/accused was found in possession of 19 Kgs. Charas and he was sent up under Article 3/4 of Hadd Order, 1979 read with section 9-B of Control of Narcotic Substance Act before the learned Special Judge (N.C.S.A.), Sukkur. The evidence of two prosecution witnesses i.e, S.I.P. Mushtaque Ahmed and S.I.P. Muhammad Ramzan was recorded on 26-10-1999. One Aijaz Ali Mahar impersonating himself to be an enrolled Advocate of the Sindh Bar Council was engaged by the applicant/accused and he conducted the cross-examination of the aforesaid P.Ws. The cross-examination was not in accordance with the instructions of the applicant/accused. Therefore, the applicant/accused suspected some foul play.
3. ' On the enquiry conducted by the applicant/accused it transpired that said Aijaz Ali Mahar was serving in police department as Head Constable/Wireless Operator in Larkana Range. Therefore, the applicant/ accused engaged another counsel, who moved the trial Court for re-calling the prosecution witnesses for examination but the same was dismissed by the trial Court.
4. ' We have heard Mr. Nizamuddin Baluch learned counsel on behalf of the applicant/accused, Mr. Shaikh Abdul Ghani learned Dy.A.-G. And Mr. Sher Muhammad Shar learned A.A.-G. On behalf of the State. Mr. Faizullah Korai learned counsel appearing on behalf of A.N.F. Authorities has adopted the arguments advanced by the learned counsel for the parties. Mr. Maqbool Ahmed Awan learned counsel appearing on behalf of Aijaz Ali Mahar, Head Constable has contended that his client was competent to appear as Advocate on behalf of the applicant/accused as he was enrolled as an Advocate by the Sindh Bar Council on 17-1-1998. On query he stated that Aijaz Ali Mahar tendered his resignation on 17-10-1999, which was accepted on 11-12-1999.
5. ' The perusal of material on record shows that the prosecution witnesses S.I.P. Mushtaque Ahmed Khoso and S.I.P. Muhammad Ramzan Gill were examined by the trial Court on 26-10-1999. The certificate dated 28-11-1999 issued by the Deputy Superintendent of Police, Telecommunication, Larkana Range, Larkana shows that the said Aijaz Ali Mahar was serving in Police Telecommunication as Head Constable/Wireless Operator No,152 and he was posted at Jacobabad District.
6. Thus, it is crystal clear that the said Aijaz Ali Mahar was neither Advocate on the day and date when he filed the power nor he was competent to appear as such and conduct the cross-examination of the prosecution witnesses S.I.P. Mushtaque Ahmed Khoso and S.I.P. Muhammad Ramzan Gill. He did not conduct the cross-examination properly which has caused serious prejudice to the applicant.
7. ' For the foregoing reasons the impugned order of the trial Court is set aside and the criminal revision application stands allowed. The learned trial Court is directed to recall/re-examine the prosecution witnesses S.I.P. Mushtaque Ahmed Khoso and S.I.P. Muhammad Ramzan Gill and provide full opportunity of cross-examination as contemplated under the law to the defence.
8. ' With these observations the Criminal Revision Application No,7 of 2000 stands disposed of.