ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Misc. Appln. No.D-43 of 2014.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
1. For orders on office objections as Flag ‘A’
2. For Katcha Peshi.
3. For Hearing of M.A.No.6279/2014.
05.03.2015
Mr. Shahbaz Ali Brohi, advocate for applicant.
Mr. Khadim Hussain Khooharo, D.P.G.
-.-.-.-.-.-.-.-.-
NAIMTULLAH PHULPOTO, J- The case was registered against the accused vide FIR No.5/2010 for offences under sections 365-A, 17/3 Offences Against Property (Enforcement of Hudood), Ordinance, 1979, 7 ATA, 1997 and 344, 109, PPC at Police Station Gaheja. Report under section 173, Cr.P.C was submitted in the Anti-Terrorism Court under above referred sections. Trial was commenced. Prosecution produced witnesses who were cross examined by the defence counsel except P.W Ali Sher. At the time of his cross examination, learned defence counsel refused to cross examine him. Consequently, learned Judge, Anti-Terrorism Court Shikarpur provided defence counsel to the accused on State expenses. It appears that deposition of PW Ali Sher was recorded but said PW was even not cross examined by the counsel appointed on State expenses.
2. Mr. Shahbaz Ali Brohi, learned advocate for accused Nizamuddin alias Nizam moved an application under section 540, Cr.P.C for recalling the P.W Ali Sher for his cross examination but such request was declined by the trial Court vide orders dated 13.12.2014. The relevant portion of the order passed by the trial Court is reproduced as under :
“It has been held in YLR 2008 Page 1226 that cross examination was a very valuable right particularly of accused. Recognition of that right, however, was not to be misused for invoking revisional jurisdiction of the High Court. Petitioner must have established some legal ground for that purpose. Application filed by the petitioner under section 540, Cr.P.C had shown that petitioner was hovering under the impression that perhaps it was his choice to exercise right of cross examination as and when he wanted, and that he was not required even to explain as to why he did not cross examine when was required to do so. Such was a misconception. Petitioner must have come up with cogent reason as to why he could not cross examine the witness at relevant time, it was not the case of the petitioner that he was not allowed opportunity to cross examine the witness. Petitioner was obliged to make out a case that he could not cross examine the witness for any reason beyond his control or any lapse was committed by the trial Court in not allowing him to cross examine. Petitioner having not bothered about the value of right of cross examination, the trial Court was not left with any option, but to move on to the next stage of the case to ensure its disposal.
For the reasons discussed above, I find no merit in this application, same is dismissed.”
3. Thereafter, through the aforesaid Misc. Application under Section 561-A, Cr.P.C said order has been called in question before this Court.
4. Mr. Shahbaz Ali Brohi, learned advocate for the accused contended that on the relevant date he was suffering from high blood pressure and sugar and was unable to cross examine the witness and he had submitted adjournment application which was declined by the trial Court. He has submitted that cross examination of P.W Ali Sher is essential for just decision of the case and it as obligatory upon the trial Court to allow his application for cross examination. He has also argued that learned trial Court had appointed counsel on State expenses for cross examination of said P.W but prosecution witness was not cross examined by the counsel appointed by the Court. In support of his contentions, he has relied upon the cases of Abdul Raoof vs. The State, PLD 2001 Lahore 463 and Mst. Aamna Bibi vs. Kashif-ur-Rehman and another, 1995 P.Cr.L.J 730.
5. Mr. Khadim Hussain Khooharo, learned D.P.G argued that full opportunity was provided to learrned defence counsel to cross examine the P.W Ali Sher but he could not avail it. He further argued that opportunity of cross examination of P.W was given and Court appointed counsel to defend the accused on State expenses. He has submitted that conduct of the accused during trial has occasioned delay in the conclusion of the trial. He has opposed the application.
6. We have given our conscious consideration to the arguments advanced above and have gone through the copy of the deposition of the P.W Ali Sher which has been placed on record with the assistance of learned counsel for the parties. The deposition of P.W Ali Sher reflects that Mr. Shahbaz Ali Brohi, learned defence counsel refused to cross examine the witness and services of the State Counsel were provided to the accused for cross examination of P.W Ali Sher on State expenses. There is nothing on record that defence counsel had made request for adjournment on the ground that he was suffering from high blood pressure and sugar on the relevant date. There is also no mention in deposition that adjournment application moved by the learned defence counsel was declined by the trial Court. Before proceeding further it is advantageous to produce section 540, Cr.P.C, which reads as under :
“Power to summon material witness or examine persons present--- Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person, if his evidence appears to it essential to the just decision of the case.”
8. Bare reading of section 540, Cr.P.C transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination. Copy of the deposition of P.W which has been placed on record reflects that there is no cross examination of PW Ali Sher by defence counsel, even by counsel provided by the Court to the accused on State expenses.
9. The powers of a Court under section 540, Cr.P.C are widest in its amplitude; it was obligatory upon the Court to summon evidence of a material witness whose evidence is essential for just decision; the Court exercising power under section 540, Cr.P.C has to guard itself from the exploitation and shall keep the guiding principle, what the ends of justice demands; the avoidance to fill gaps is in negation of justice, when a Court arrives at the conclusion that evidence is essential for a just decision, and, that the delay in moving an application is not relevant as the Court itself is empowered, even, without application from any of the parties to summon the witness deemed essential for just decision by applying its judicial mind.
10. The alleged offence carries capital punishment. Cross examination of P.W is very much essential for just decision of the case. It was obligatory upon the trial Court to allow defence counsel to cross examine the witness. The accused should not suffer for the fault if any of the defense. Cross examination of P.W Ali Sher is most valuable right of accused and is only vehicle through which truth or falsity of witness can be determined by the Court. In absence of cross examination case of accused shall seriously be prejudiced, therefore, impugned order in the circumstances of the case is not sustainable under the law and is set aside. Trial Court should provide fair opportunity to cross-examine PW Ali Sher as contemplated in law. We, therefore, direct the trial Court to re-summon P.W Ali Sher for the purpose of his cross examination. However, if prosecution witness namely Ali Sher is not cross examined by the defence counsel on the date fixed by the trial Court then accused would not be given any other opportunity and case shall be decided by the trial Court expeditiously under the provisions of Anti-Terrorism Act, 1997. The Crl. Misc. Application/Revision with these observations is allowed in the above terms
Sd/ - Naimatullah Phulpoto, Judge
Sd/ - Nadeem Akhtar, Judge
Yousuf Panhwar/**