Through the instant criminal revision, the petitioner has challenged the following conviction awarded by the learned Judicial Magistrate, Section 30, Islambad (Rai Liaqat Ali Kharal):-- "Accused is convicted in offence u/S. 457, PPC and sentenced to rigorous imprisonment for three years and fine of Rs, 50,000/-. In default of payment of fine, the accused shall further undergo simple imprisonment for the period of six months. He is also convicted in offence u/S. 411, PPC and sentenced to rigorous imprisonment for three years and fine of Rs, 50,000/-. In default of payment of fine, the accused shall further undergo simple imprisonment for the period of six months. Both the sentences shall run concurrently. The accused is given benefit of Section 382, Cr.P.C.".
On preferring appeal, the said conviction was reduced to three months S.I. in accordance with Section 65, PPC by the learned Additional Sessions judge, Islamabad vide judgment dated 02.06.2012. The FIR was registered at P.S. Margalla, Islamabad Bearing No, 162/2010 dated 1.4.2010 specifying offences falling u/S. 380, 457 & 411, PPC and 14 Hadood Ordinance. After usual investigation, the petitioner was sent up for trial by submitting final report u/S. 173, Cr.P.C.
2. The facts in brief as alleged by the complainant are that he and his family members went to market for purchasing household articles on Vehicle No, LXO-4444. On return, household articles were found scattered. On verifying, 4000 Saudi Riyals, Rs,, 18,000/- and gold ornaments worth Rs, 20,00,000/- were found missing. He searched for it, but nothing was found, therefore, he moved an application addressed to SHO, Margalia, Islamabad, which was subsequently shaped into FIR.
At the trial, the prosecution had examined the complainant as PW-1, Khizar Hayat, ASI as PW-2, Muhammad Bashir, SI, CIA as PW-3, Imran Haider as PW-4, Riaz Ahmed Makan, ASI as PW-5, Kafayat Hussain SI/I0 as. PW-6, Fayyaz Hussain, SI as PW-7 and Azhar Mehmood as PW-8. There- after the statement of accused was recorded u/S. 342, Cr.P.C., to "which, he denied all the allegations and deposed that he has falsely been implicated as well as pleaded his innocence and requested for acquittal.
The learned trial Court, after hearing the arguments of both the sides, convicted the accused to suffer RI for three years and fine of. Rs, 50,000/- for the offence failing u/S. 457, FPC, in default whereof, the accused shall further undergo imprisonment for six months SI. He was also convicted for the offence u/S. 411, PPC, to surfer three years Ri and. fine of Rs, 50,000/-, in default whereof, to further undergo SI for a period of 6-months with benefit of-Section 382, Cr.P.C. and both the sentences shall run concurrently. It is further observed that offence falling u/S. 380, PPC 14 Had Ordinance, not proved against the accused, so he was acquitted for the same.
Against the conviction, the petitioner had preferred appeal before learned Sessions Judge, Islamabad, who transmitted the same to learned Additional Sessions Judge (Muhammad Azam Khan), who after hearing the parties, examining the evidence and discussing some technical aspects, reduced the sentence for three months -ach SI as stated above.
Against the said conviction, the petitioner has preferred the instant criminal revision assailing both the judgments passed by learned Courts below.
3. With the revision, learned counsel for the petitioner also submitted depositions of PWs, which are available on record as Annex-A to H.
4. Learned counsel for the petitioner has pointed out in the petition that right of accused as envisaged by Section 340, Cr.P.C. has been violated, which should have been provided to the accused to be defended by the pleader. He argued that under such circumstances, when the pleader or counsel for the accused was not available, the responsibility incurs upon the Court concerned to make efforts for every possibility to provide defence, either by giving an opportunity to the accused for producing his counsel or in case of failure, learned trial Court should have cross-examined the witnesses itself for checking the veracity of PWs.
5. Learned Standing Counsel has half-heartedly conceded such .proposition of law, but argued that the right of accused is to be defended through the pleader, which has been protected by the High Court Rules and Orders in capital offences. But the procedure laid down u/S. 340, Cr.P.C. does not provide hard and fast rule that in every case, such an opportunity should be given to the accused. Since the word 'may' has been used, therefore, it is discretionary not-mandatory, as such, learned trial, Court has rightly not provided such an opportunity to the accused while exercising its discretionary powers at the time of examining PWs. Therefore, it cannot be termed as an illegality, hence such a plea cannot be raised in the instant criminal revision, which is required to be dismissed. For convenience, Section 340 Cr.P.C. is reproduced hereunder:-- "340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness.--(1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader".
6. Arguments heard. Record perused as well as relevant provisions of law.
7. It is a golden principle, which has been discussed and highlighted so many times by the superior Courts with regard to the status of the accused person facing the trial of criminal charges that he being illegitimate child of law, is to be provided every opportunity to defend himself. Since it is a view provided by the scheme of law that accused may be defended through the counsel, does not mean that every right of accused to defend himself should be curtailed.
8. Otherwise, in view of maxim audi aiterm parlem (Nobody should be condemned unheard), on which law has further been developed, which provides a glaring principle of natural justice that the person facing the charges of any nature, has to be provided an opportunity to defend himself according to procedural law.
9. The other aspect of this entire discussion in view of Article -133 of Qanun-e-Shahadat Order, 1984 is that if it is evaluated, the cross-examination by the accused being raw person having no experience to cross-examine properly, cannot be equated with the cross-examination by a professional advocate. For convenience, Article 133 is reproduced hereunder:-- "133. Order of examination.--(1) Witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(2) The examination and cross-examination must relate to relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination- in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross- examinations and, if new matter is, by permission of the Court introduced in re-examination, the adverse party may further cross-examine that matter: - Such a burden of cross-examining PWs could be shared by the Court dealing with the trial.
10. In the instant criminal revision, conviction awarded by the learned trial on the basis of evidence of PWs, who have not been cross/ examined either by the accused, his counsel or by the learned trial Court dealing with the trial. Learned trial Court only mentioned that opportunity was provided, but same was not availed by the accused, is not sufficient to relieve the Court from such heavy burden of defending the rights of accused. Under such circumstances, Court should have cross- examined the accused from every aspect of the case. In this regard, I am fortified by a decision delivered by the Hon'ble Sindh High Court at Karachi reported in 1997 M LD 1632 Karachi (Qalandro alias Nazro Vs. The State). The learned Division Bench of Sindh High Court while discussing all these legal aspects have given verdict thereby declaring the impugned judgment as not maintainable in law, accordingly same was set aside.
11. In the instant case, only PW Wing Commander Faheem Ahmed has been cross-examined, but that too, does not disclose, as to whether he has been cross-examined by the counsel or accused himself.
12. Nobody appeared on behalf of petitioner since morning, therefore, with the active assistance of learned Standing Counsel, I have carefully perused the entire record and reached to the conclusion that learned trial Court has erred in deciding the legal aspect gravely involved in favour of the petitioner. Since the petitioner was not given an opportunity to cross-examine the PW through his counsel, which is otherwise a right of every person to defend himself according to his choice by engaging a counsel or otherwise.
13. Therefore, in view of above discussion, I am of the confirmed view that conviction awarded by the learned trial Court is not on sound footings, hence same is hereby set aside. Consequently, the judgment delivered by the learned Additional Sessions Judge, Islamabad is also set aside.
14. The case is remanded back to the learned trial Court to the stage of cross-examination of PWs earlier examined by learned trial Court by giving opportunity to the accused to cross-examine them through his counsel by fixing a date. Learned trial Court shall observe all possible efforts to conclude the trial within a period of three months.
15. With these observations, instant criminal revision is allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.