SARDAR MUHAMMAD ASLAM, J.---The appellants were tried under sections 12D- B/109/302/34/324/34, P.P.C. And sections 6 and 7 of. ATA, 1997, in a case registered against them on 6-5-1997 at Police Station Civil Lines, Gujranwala, for commission of murder of Muhammad Ashraf Marth, the then SSP, Gujranwala and his Driver Tabassum Zameer, by a Special Court established under the Anti-Terrorism Act, 1997, and finding them guilty of all the charges convicted and sentenced each of them as under:--
(a) Death under sections 302/34, P.P.C. On two counts with direction to pay compensation of Rs,50,000 each to the legal heirs of deceased on each count and in default of payment of compensation to undergo imprisonment for one year on each count;
(b) Under section 120-B/34, RI for 10 years each with direction to pay Rs, 50,000 each as compensation to the injured and in default of payment of compensation to undergo imprisonment for one year each.
2. The appellants have assailed their conviction and sentence in the Lahore High Court, where a learned Division Bench vide its judgment dated 30-4-2002, maintained their conviction and sentence. Leave was granted to the appellants to examine the following questions of law:-- 'Firstly, that a person who is facing criminal charge and particularly the capital charge of murder, if failed to engage a private counsel would not be entitled to the assistance of a defence counsel of his choice on State expenses, ' Secondly, an accused by his disorderly conduct of noncooperation with the court, if caused hindrance in the proceedings and delayed the conclusion of trial, would loose the right of defence by a counsel of his choice.
' Thirdly, the trial without defence counsel was legal as in absence of the counsel, the witnesses could not be cross-examined by the petitioners themselves and even if they would have been cross-examined by the petitioners, it would not be a substitute of cross-examination of the counsel.
3. The occurrence took place on 6-5-1997 at 8-20 a.m., in the limits of Police Station Civil Lines, Gujranwala, and on written complaint by Tariq Javed at 8-45 a.m., F.I.R. Was recorded by Munir Hussain, Head Constable. The narrative given in the F.I.R. Is that Muhammad Ashraf Marth, SSP, proceeded from his house to his office on a Jeep driven by Tabassum Zameer, Driver, while Tariq Javed FC complainant and Shakeel Ahmad FC were on the pillion seat of Jeep. When the Jeep took a turn towards DC road, all of a sudden, three unknown persons came there on a motorcycle out of which two were possessing Kalashnikov and started firing from the front and right side of the Jeep.
Both, Muhammad Ashraf Marth, SSP and Tabassum Zameer, Driver lost their lives while constable Shakeel Ahmad received injuries on his leg. The motive behind the occurrence was that Muhammad Ashraf Mart deceased was under a threat by Maulana Muhammad Azam Tariq and Riaz Basra for his murder and this incident resulted at the instance and abetment of aforesaid Azam Tariq and Riaz Basra.
4. Investigation was initiated. Both the deceased and injured person were shifted to the hospital, therefore, Investigating Officer on reaching the hospital prepared inquest report of the two deceased and injury statement of injured and required post-mortem examination of the dead bodies and examination of Tariq Javed (injured by fall from the jeep) and Shakeel Ahmad injured P.
Ws. Place of occurrence was inspected; bloodstained earth was taken into possession; broken pieces of glasses were taken into possession; blood-stains were secured from the official vehicle; 40 crime-empties of Kalashnikov were secured from the spot; official jeep was taken into possession; an empty cement bag statedly left by the accused was secured. The police arrested Abdul Rauf, Qari Shabbir Hussain, Muhammad Mehr (PO) and Qari Muhammad Ishaq. Recoveries were effected. After usual investigation, incomplete challan was submitted. The case was, also, investigated by Muhammad Farooq, DSP. Prosecution produced 30 witnesses in trial and examined Tariq Mehmood Cheema as C.W.1. Statements of C.W.2 to C.W.4 were also recorded. Reports of Chemical Examiner, Serologist and Forensic Science Laboratory were tendered in evidence.
Statements of the appellants were recorded under section 342, Cr.P.C. The appellants did not reply to any question put to them in statement under section 342, Cr . P. C .
5. Learned counsel for the appellants contends firstly; that prosecution witnesses were not cross- examined on account of non-representation by counsel before the trial Court, the evidence so recorded, could be of no significance and conviction cannot be safely based on the basis of such evidence; secondly, that the learned counsel at the State expenses was not provided of their choice and the one provided was not capable to defend them and it practically amounted to condemn them unheard and unrepresented in a case of capital punishment and; lastly, that the identification of the appellants was not proved beyond doubt and they on the basis of insufficient evidence were presumed the culprits. He relied on Moti Singh and others v. Dhanukdhari Singh and others (AIR 1923 Patna 53); Ram Lal v. Harpal and another (AIR 1929 Allahabad 236); Dikson Mali and another v. Emperor (AIR 1942 Patna 90); Mt. Khadija Begum v. Nisar Ahmad (AIR 1936 Lahore 887); Hakeem v. The State (PLD 1963 (WP) Karachi 63); The State v. Ghulam All and 5 others (PLD 1975 Karachi 90); and Abdul Raoof v. The State (PLD 2001 Lahore 463). On the other hand, learned Deputy Prosecutor-General, Punjab, in opposition argued that services of learned State counsel was provided to the appellants but they themselves opted in not imparting instructions and defending the case through him. Their conduct, in not allowing the learned defence counsel to cross-examine on their behalf, called for no indulgence and that sufficient evidence was brought on record to prove the prosecution case beyond reasonable doubt.
6. We have heard learned counsel for the parties and perused the evidence available on record.
7. The co-accused engaged Mr. Hammed Ahmad Butt, Advocate, on their behalf while the appellant failed to engage a counsel inspite of seeking some adjournments on this score. Learned trial Court, therefore, appointed Mr. Muhammad Abdul Hameed Butt, Advocate, as counsel for the appellant at State expenses. On account of reservation defence counsel Mr. Amir Khan Niazi and Zafar Chandio, Advocate, known as best of the lots from Sargodha in criminal trials at State expenses were appointed to represent the appellants and adjourned the case for prosecution evidence for 14-3-2000. On 16-3-2000 the appellants refused to be defended by the counsel appointed at State expenses and wished to engage defence counsel of their own. The case was adjourned providing an opportunity for engaging a counsel on their own. On 27-3-2000, appellants' stance before the trial Court was that they are not in a position to appoint their defence counsel and requested the Court to appoint Chaudhry Parvez Aftab and Sarfraz Hussain Dogar of Multan for them, as defence counsel at State expenses. In case, they do not consent to appear on their behalf, then Messrs Abadat Ali Malik and Mr. Karamat Ullah Mufti, Advocate, be appointed. Both Chaudhry Parvez Aftab and Sarfraz Hussain Dogar, refused to defend the case of the appellants.
Resultantly, the defence counsel appointed at State expenses namely Abadat Ali Malik and Karamat Ullah Mufti were directed to appear on behalf of the appellants. The appellants, however, raised objection and stated that they would not like to be represented by the above named State counsel. The co-accused of the appellants approached the High Court in Criminal Miscellaneous No, 1120-M of 2001, and were allowed to cross-examine the witnesses by its order dated 14-6-2001.
They engaged their counsel, but the appellants at this point of time filed an application for appointment of MIs. Sardar Abdul Latif Khan Khosa and Sahibzada Farooq Ali Khan (of Multan) as defence counsel on their behalf, at State expenses. Notice of this application was given to the State. Learned trial Court refusing request observed that the appellants are bound to engage a counsel of their own in the light of order dated 14-6-2001 passed by the Lahore High Court. Co- accused of the appellants, therefore, fully participated in the trial but appellants remained mute.
8. Statements of all the prosecution witnesses and court witnesses were recorded by the trial Court.
The appellants did not engage a private counsel. Services of defence counsel were provided at the State expenses. Appellants have shown their unwillingness to be represented by the defence counsel and conducting of cross-examination, on their behalf. Opportunity was granted to them to conduct cross-examination themselves, but they refused to do so. Learned Court while recording statement under section 342, Cr.P.C. Put questions seeking their answers had to face a similar situation. The appellants remained mute and gave no answer accepting or denying the guilt.
9. The appellants charged with an offence visiting capital punishment cannot claim an exceptional treatment. An accused, though is regarded a favourite child of law yet favour cannot be extended to a stage which hinders the process of law and the proceedings of the Court are halted to a dead end. The provision' of an Advocate at State expenses is a right of accused who for reasons of his poverty or otherwise is unable to engage a counsel, privately. This choice can be exercised by him out of the Advocates on the panel, maintained by the Court. We have no hesitation in saying that the conduct exhibited by the appellants was disorderly, stubhorn, unethical and not approvable, meant to delay the trial, deliberately, by erecting stumbling block in the way of Court.
10. Notwithstanding the afore-stated observation, we are of the view that in a case of capital punishment a Court cannot come to a just decision unless the credibility of the witnesses is tested on the touchstone of cross-examination. Injustice is likely to occur in a case where cross- examination- on the witnesses was not conducted either by the counsel provided at State expenses on account of unwillingness of the accused or by the accused themselves. Even, the cross-examination conducted by the accused himself has not been considered to be substitute of cross-examination conducted by a counsel.
11. Before proceeding further, survey of the precedent law cited by the learned counsel is necessary:-- Moti Singh and othersv.
Dhanukdhari Singhand others (AIR 1923 Patna 53)In this case proceedings under section 145, Cr.P.C. were initiated. The Magistrate directed the witness ofthe first party to produce evidence on the fixed date. Thereafter on various dates, he recorded examination---in-chief of several witnesses produced by the first party. He postponed the cross- examination till the first party had closed its case and on closure the witnesses were directed to be produced for cross-examination. One of the witnesses was cross-examined for continuous three days and the case was therefore adjourned for cross-examination on the remaining witnesses. On this date the second party did not appear. The Magistrate thus decided the case holding that evidence produced by party was sufficient for decision of the case without providing an opportunity for cross-examination of the remaining witnesses. In this view of the matter it was held that evidence in chief without opportunity of cross-examination is illegal. This judgment has no application to the facts of the case in hand.
Ram Lal v. Harpal and another (AIR 1929Allahabad 236)The dispute related to dissolution of a partnership and rendition of accounts.
It was held that evidence of a witness cannot be admitted unless and until the opposite party had opportunity of cross-examining him. This judgment, too, is not applicable to the facts of the case in hand.
Dikson Mali and another v.
Emperor(AIR 1942 Patna 90)Three persons charged for an offence under section 302, Penal Code were sentenced to transportation forlife. In the Sessions Court a lawyer was engaged at the expenses of crown to defend them but he appears to have conducted the defence in a most perfunctory manner. Observation made by a Division Bench of the Patna court in 173 IC 833 was followed which is reproduced below: "We desire to make some remarks about the defence of prisoners who are too poor to instruct lawyers on their own account. Those whose duty it is to select lawyers to defend at the expenses of the Crown should not treat the selection as a matter of patronage for the benefit of the lawyers' so appointed. The selection should be made from among young men of marked ability. We have frequently observed that the persons actually appointed do their work very badly and conspicuous opportunities for cross-examination and obvious arguments are entirely ignored. In such circumstances also the trial Judge should remember that he has the duty not only to the prosecution but to the defence. He has the police diary in front of him and should use his greater experience to cross-examine the witnesses when he sees that the defence lawyer is incompetent. He should not do this unnecessarily but only when it is desirable in the interest of justice."
Notwithstanding the observation, the accused were acquitted on account of retracted confession.
Mt. Khadija Begum v.Nisar Ahmad (AIR1936 Lahore 887)A civil suit for cancellation of a deed for relinquishment was filed. A learned trial Judge put certain questions which were not approved by an Additional District Judge. The High Court gave an opinion that "the question put to the defendant was a very proper question and I may point out for the information of the District Judge, that although a Judge would not be acting strictly according to the rules of judicial practice if he were to take the work of examining and cross-examining witnesses in his own hand yet certainly it is his duty and privilege to put questions to witnesses in order to get at the truth.
This is the reason why the powers of the Court in this respect are much wider than those of the counsel.
Hakeem v. The State(PLD 1963 (WP)Karachi 63)Accused were facing proceedings under section 110, Cr.P.C. and an order under section 120, Cr.P.C. was made against them. It was urged that 10 out of 12 prosecution witnesses were examined and not cross-examined at all by the applicant. An application for their re-examination was made which was dismissed. The Court held that right of cross-examination has from times immemorial been held, to be particularly in criminal cases a valuable right to the accused.
The State v.
GhulamAli and 5 others. (PLD1975 Karachi 90) Abdul Raoof v. TheState (PLD 2001 Lahore 463)In this case, it was held that deposition of a witness in regard to which an opportunity for cross-examination has not been given is not really evidence at all. The accused was tried in a case under section 9-C of C.N.S.A. The cross- examination of the witnesses was closed by the Court on account of non- availability of the counsel when his junior associate made an application seeking an adjournment. An application was filed for re-examination of the witness under section 540, Cr.P.C, which was rejected. In this context, the trial Court was directed to grant an opportunity to the accused for cross- examination of the witness, after re-summoning.
12. The ratio in the above cited case law is that an opportunity should be granted to a party for cross-examination of the witnesses and where cross-examination is not conducted on account of non-availability of the counsel or for some lawful reason, the Court may grant such permission if asked for under section 540, Cr.P.C. The Court, itself, can re-summon a witness if his evidence is required for a just decision of the case:
13. Choice to engage a senior counsel at State expenses is not an absolute. If such a request of an accused is acceded, it is likely to involve millions of rupees as professional fee and will result in delay of 'proceedings as many accused will be in queue desiring engagement of such top-notch professional lawyers at State expenses. This demand may go further for asking a defence counsel out of the District and, even, out of country.
14. Undeniably, to ascertain the truth or falsity to a charge the statements of the witnesses are judged by conducting cross-examination. It is always said to be the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice and substantial injustice may occur to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity. Similarly, provision of a defence counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case. Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defence counsel maintained by the Court.
15. Having considered the case of appellants, we are of the view that the appellants should be given time to engage a counsel privately of their own choice, failing which the learned trial Court shall provide them the defence counsel at State expenses of their choice, out of the list maintained by the Court. If the appellants fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expenses, the Court will be at liberty to proceed with the trial and the defence counsel so appointed shall be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence.
16. For what has been discussed above, we allow the appeals, set aside the judgment of the learned Courts below and remit the case back to the trial Court for denovo trial. Learned trial Court shall consider the question of its jurisdiction in terms of section 38 of the Anti-Terrorism Act, 1997, before framing of charge. The appellants shall be treated as, under trial prisoners.