S B L R 2007 FSC

[Federal Shariat Court]
(Appellant Jurisdiction)

Present: Haziqul Khairi, CJ.

Habib-ur-Rahman---Appellant.

versus

The State---Respondent.

Criminal Appeal No. 17-K of 2006 Decided on 16th March, 2006.

A) Pakistan Penal Code, 1860 Section 392, 337- F(i) r/w section 34---Appeal, conviction maintained---appellants council contended that through out the case none of the prosecution witness was cross examined by the council for the appellant and deprive the appellant of his night to cross examine them---observed that the examination in chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 but the appellant council was not available for their cross-examination nor the appellant availed the opportunity to cross-examine persecution witnesses.
[P -]A.

B) A accused Person cannot be compelled to defend himself---if an accused person refuses to cross examine the prosecution witness or does not avail the opportunity to defend himself then trial court cannot compel him to put up his defance but is obliged to give maximum latitude to him to defend himself to avoid the injustice.
[P -]B.

Ms. Uzma Khan, Advocate for the Appellant.

Mr. Arshad H. Lodhi, Assistant Advocate General Sindh.

Date of hearing: 16th August, 2006.



JUDGMENT

HAZIQUL KHAIRI CJ.- The appellant being aggrieved and dissatisfied with the judgment dated 17.03.2006, passed by Mrs. Sher Bano Karim Vth Additional Sessions Judge Karachi South in S.C. No. 262/1997 arising out FIR No.56/1997 under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 has preferred this appeal under section 24(10 2nd Proviso of Hudood Ordinance, 1979 read with section 410 of Criminal Procedure Code whereby the learned judge was pleased to convict the appellant under section 392 & 337-F(i) read with section 34, PPC and awarded him sentence for seven (07) years and one year respectively and to pay Damman of Rs.25.000/= or in default whereof to undergo R.I. for six (06) months more. Both the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.

2. Briefly the prosecution case is that on 23.2.1997, the complainant namely Naseer Ahmed reported at Kalakot that while he was present in his house at Flat No.12, 5th Floor, Noor Apartment, Muhammad Ali Alvi Road, Karachi somebody knocked at the door of his house and stated that a letter form one Naseer Ahmed (complainant) has come, whereupon the complainant opened the door and two persons namely Zahoor Ahmed son of Ghulam Mustafa entered into his house armed with weapons and directed him to take out whatever there was in the house. The complainant handed over gold moments to them and also cash amount and Rado Watch. However the complainant who was an ex-Army Officer in Oman tried to catch hold the appellant Habib-ur-Rahman who fired at him whereupon he got injured. The accused ran through the stairs of the house. When the complainant came down from the house a police van reached there and the police followed them and caught hold of the said two accused. Their companion standing on the ground floor fled away. The police recovered loaded pistol from the accused Zahoor Ahmed and another pistol and Rado Watch fomr the appellant Habib-ur-Rahman. The remaining looted property was taken away by their co-accused Abul Hasan who has been absconding since then, challaned under section 512, Cr.P.C. and declared proclaimed offender under section 87 and 88, Cr.P.C. After the grant of bail to Zahoor Ahmed another accused, he was also absconded and their case was kept on dormant file till that are arrested and produced before the learned Additional Sessions Judge Karachi South.

3. The prosecution examined complainant Naseer Ahmed who in his deposition reiterated what he had stated in FIR. He produced FIR, Memo of Arrest and Recovery, Memo of Site Inspection and Letter of Treatment etc. He also identified both the two accused persons in Court and also the Rado Watch.

4. PW-2 Kamran and PW-3 Sadiq also corroborated as to how the police mobile reached the building and how the complainant informed them of the incident and how the accused persons were apprehended and in their presence the TT pistols and Rado Watch were recovered.

5. PW-4 H.C. Abdul Razaq of P.S. Kalakot deposed that he was on mobile duty along with H.C. Akbar Baloch when he heard shouts of the people and on reaching Muhammad Ali Alvi Road at 10.15 a.m. he saw the accused running. The people apprehended them and handed over to hem. H.C. Akbar Baloch conducted personal search of the accused and secured 32 bore pistol from Zahoor Ahmed and 30 bore pistol from Habib-ur-Rahman so also one Rado wrist watch and two bullets were recovered.

6. PW-5 Inspector Muhammad Ilyas the investigating officer also deposed and stated that the complainant came to the police station along with apprehender accused persons and the case property. He identified the appellant and he pistol which was brought in Court.

7. PW-7 Muhammad Hanif has supported the prosecution story to the extent that the injury was sustained by the complainant and produced and proved them medical summary at Ex.19.

8. It is pertinent to note that complainant (PW-1); Kamran (PW-2) and Muhammad Sa (PW-3) were examined on 13.11.1999. PW-4 HC Abdul Razaq was examined on 15.12.1999. PW-5 Inspector Muhammad Illays was examined on 3.7.2003 and then recalled and re-affirmed on 27.10.2004. PW-7 MLO Dr. Muhammad Hanif Shaikh was examined on 17.1.2006, but throughout on all these dates the appellant’s advocate remained absent to cross-examine the prosecution witness although ample opportunity was given to the appellant.

9. The main thrust of arguments of Ms. Uzma Khan learned advocate for the appellant is that the Trial Court has filed to appreciate that none of the prosecution witnesses was cross-examined by the counsel for the appellant and the Learned Trial Court had shown unnecessary haste to deprive the appellant of his right to cross-examine them and proceeded further in disposing of the case. It will be advantageous to reproduce here section 540, Cr.P.C. as under:

“540. Power to summon material witness or examine person present. Any Court may at any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and 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.”

10. In order to demonstrate the importance of cross-examination in a Criminal Trial the learned counsel for the appellant has placed reliance on Nusrat vs. The State (1997 MLD 1358) Federal Shariat Court, in which was held:

“Right to cross-examine is not empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. In the circumstances, the appellant should not be penalized for absence of his Advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned Single Judge of the Sindh High Court in the case of Altaf Hussain Shamim v. State PLD 1992 Karachi 91 in which judgment reliance has been placed in several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case the prosecution witnesses should have been recalled in the circumstances of the case.”

11. In this case the application moved by the appellant for cross-examination of the witness was dismissed by the Trial Court on the ground that the evidence had already been completed and neither the advocate for the accused nor the accused cross-examined the prosecution witness. In Abdul Qadir vs The State (PLD 1991 Karachi 353) the Special Judge (Customs & Taxation) Karachi refused to grant the applicant’s application under section 540, Cr.P.C. for recalling the witnesses for purpose of cross-examination as his advocate was busy before a Division Bench of the High Court of Sindh on the date of examination of prosecution witnesses and was not available to cross-examine them. In Afzal Haider vs The State (1992 MLD 421) a Division Bench of High Court the appellant/accused wanted to cross-examine himself on oath to disprove the charge, but no opportunity was provide to him, resultantly the conviction was set aside. As regards the interpretation or and implications involved under section 540, Cr.P.C. the Criminal Procedure Code, the Supreme Court of Pakistan Muhammad Azam vs Muhammad Iqbal (PLD 1984 Supreme Court 95) at page 125 has held:

“One more aspect needs to be clarified regarding the exercise of power under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts one discretionary and the other obligatory; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of Section 540, Cr.P.C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps; namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power them should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.”

12. The facts of this case are very much different and distinguishable form the cases cited by the learned counsel for the appellant and other cases referred to above, inasmuch as, the appellant had moved an application on 21.08.2000 under section 540, Cr.P.C. for summoning the prosecution witnesses which was allowed, in response to which PW-4 H.C. Abdul Razaq appeared in the Court but again the accused failed to avail the opportunity to cross-examine him. As regards PW-1, 2 & 3, who were also related to one another it was reported that they were abroad and not available in Pakistan and one Khuda Bux father-in-law of PW-1 deposed in the Court to this effect but the appellant or his counsel failed to cross-examine him.

13. What is pertinent to note is that examination-in-chief of the prosecution witnesses had commenced form 13.11.1999 and continued till 17.01.2006 on as many as 6 different dates but at no point of time the appellant’s counsel was available for their cross-examination nor the appellant availed the opportunity to cross-examine prosecution witnesses.

14. A Trial Judge cannot compel an accused person to put up his defence but is obliged to give maximum latitude to him to defend himself so that injustice may not be done to him. It is also incumbent on an accused person to put up his defence and he may leave it to the prosecution to prove their case against him and to let the Court decided his fate or have mercy on him. Criminal matters must be taken very seriously by the Court as they pertain to life, liberty and honour etc of a citizen but an accused cannot be allowed to abuse the due process of law. Learned counsel for the appellant concedes that the appellant remained on bail for about 2-1/2 years during this period. He was examined by the Trial Court under section 342, Cr.P.C. on 25.1.2006 but he refused to examine himself on oath to disprove the charge and also did not want to produce any defence witness. In Abdul Malilk vs The State (PLD 1985 F.S.C. 293) a Division Bench of this Court held as under:

“The duty of the Court ends as soon as the accused is asked to produce evidence in defence if any. In spite of the opportunity having been given, if the accused does not choose to exercise his right under section 340 (2) as amended by Ordinance XII of 1985, no irregularity shall be deemed to have committed by the Court”.

15. Thus full opportunity was given to the appellant to adduce his deference and cross-examine prosecution witnesses. It is not the case of the appellant that on account of his poverty, he was unable to engage a counsel in which case a State Counsel could have been provided to him.

16. However, keeping in view the facts and circumstances of the case and the fact that this was the first offence committed by the appellant I reduce the sentence of the appellant from seven (07) years to five (05) year under section 392, PPC and to pay Daman of Rs.25,000/- or in default whereof to undergo R.I. for six (06) months. So far conviction under section 337-F(i) read with section 34, PPC is concerned I shall maintain the same. Both the sentences to run concurrently with benefit of section 382-B, Cr.P.C.