' QAZI MUHAMMAD AMIN AHMED, J.---The petitioner is facing trial before a learned Magistrate at Sahiwal in a case registered vide FIR No,149 way back on 5-12-2014 at Police Station Harrapa; he is accused of issuance of a cheque, in fulfillment of some financial obligation, bounced on presentation. Report under section 173 of the Code of Criminal Procedure, 1898 was submitted as far back as on 25-9-2012, pursuant whereto, he was indicted on 14-2-2013 whereafter the case could not proceed for one reason or another; there are adjournments to the discredit of the complainant as well, however, the learned trial Magistrate finally succeeded in recording statements of PW-1 and PW-2 on 17-7-2014; the cross-examination was deferred on the request of the defence. On 9-9-2014 the witnesses were in attendance, however, due to non-availability of learned defence counsel, the case was adjourned to 13-9-2014 with last opportunity to the petitioner to arrange cross-examination; on 13-9-2014, the witnesses were again in attendance but the petitioner solicited original record before cross-examination, the next date was 15-10-2014 when the case could not proceed owing to transfer of the learned Presiding Officer; on 13-11-2014 again the case was adjourned as inquiry report was sent for; this went on till 30-7-2015 when the witnesses already examined in chief accompanying the third witness were in attendance, however, cross-examination was once again deferred due to non-availability of the learned defence counsel, the petitioner was once again cautioned with a last opportunity to arrange his representation; the case was posted for hearing on 19-9-2015 when the petitioner defaulted in his appearance, lawyers were also on strike and petitioner was sent for through non-bailable warrants for 30-9-2015 when once again despite availability of witnesses, the petitioner failed to arrange cross-examination through his counsel and his right for cross-examination was forfeited vide order dated 30-9-2015, vires whereof, were challenged through a revision petition which met with no better fate before a learned Addl. Sessions Judge at Sahiwal, who upheld forfeiture vide order dated 10-10-2015.
2. Learned counsel for the petitioner contends that the right of cross-examination being a most important right cannot be forfeited without first exposing an accused to a certain conviction and as such the request merits to be visited with leniency; that an overall analysis of interim orders reveals that the prosecution itself is a contributory towards the lapse in no less degree and that on 19-9-2015, the lawyers were on strike and as such it was not possible for the petitioner to arrange cross-examination; the bottom-line of the learned counsel is that the impugned forfeiture of right of cross-examination is liable to be struck down in exercise of inherent powers by this Court under Section 561-A of the Code of Criminal Procedure, 1898.
3. There is no cavil with the fact that right of cross-examination is a most valuable right which enables an accused confronting a criminal charge to vindicate his position. No statement except a dying declaration, can be read in evidence to the detriment of a person, likely to be adversely effected by such statement, unless cross-examined. Right of hearing and right of cross- examination are equally important to ensure a fair trial, nonetheless, accused is to be afforded a meaningful and reasonable opportunity to canvass his point of view as well as impeach credibility of the witnesses appearing against him through cross-examination, however, it does not mean, by any stretch of imagination that accused would avail these opportunities according to his whims and choice or that he can hold in abeyance the process of law to a point of time of his selection. In a criminal trial, before his indictment and recording of evidence pursuant thereto, an accused is provided copies of statements of witnesses and allied material, much in advance, so as to enable him to know the nature of accusation and evidence in support thereof. The legislature in its wisdom has provided a period no less or no later than seven days. No doubt, for a valid cause, this period can be extended but certainly within reasonable limits. Another aspect of delay in recording of evidence or cross-examination of the witness is the hardship suffered by a witness, a structural component of system of administration of justice, second to none in importance. The system of administration of justice is evidence based and as such dependent upon witnesses. Incessant adjournments and importunate cross-examinations are the factors behind social apathy towards civic responsibility to become a witness in aid of justice despite a divine command. Entry into a witness-box is nothing less than stepping into a quagmire. This uncharitable treatment of witnesses at the hand hands of the unscrupulous must be discouraged with full force.
4. Reference to lawyers strike is also beside the mark. Contention of a plaintiff on the strength of lawyers strike did not find favour in the case of Ch. Shamsher Ali v. Khalid Mehmood (2015 YLR 47).
Call of strike by the members of the Bar cannot be taken as a cover for failure to cross-examine a witness, who is in attendance. Every professional pursuit and calling is subservient to law and so is the legal practice. A counsel is bound to appear in the Court when a matter is called so as to represent his paymaster and in the event of default, the Court may proceed with the case regardless of the consequences befalling upon the unrepresented client, who may sue the counsel for any injury or loss on C account of failure to provide him legal assistance. It has been held in the case of B.L. Wadehra AIR 2000 Dehli 266 "prolonged strike by the lawyers has caused injustice to the public and the litigant and has also interfered with the administration of justice". This issue also came under the consideration of Supreme Court of India in the case of Ex-Capt. Harish Uppal v.
Union of India, relevant portion is advantageously reproduced below:- "Every Court has a solemn duty to proceed with the judicial business during Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is under an obligation to hear and decide cases before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in the common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant's fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its hands in the helplessness on the face of such continued violation of the fundamental right."
For the above reasons, the petitioner cannot press into service lawyers strike on 19-9-2015 to indemnify his absence or failure to arrange representation on the witnesses, who were in attendance.
5. Contention that prosecution is equally responsible for the delay, as some of the adjournments are to its discredit, hardly advance petitioner's case for the reason that after recording of examination of chief of the witnesses, delay in cross-examination is not to be determined on the basis of arithmetic quantification and instead it is to be evaluated on attitudinal paradigm and that reflects a persistent pattern on part of the petitioner to avoid conclusion of the trial. Powers under section 561-A of the Code of Criminal Procedure, 1898 are to prevent abuse of process of law and in aid of justice; these cannot be invoked to validate wrongs. For the above reasons, this petition is dismissed in limine.