1. Qazi Muhammad Amin Ahmed, J.--Muhammad Ilyas, Ali Akbar and Asghar Ali, appellants herein, are in receipt of a guilty verdict, returned by a learned Addl. Sessions Judge at Lahore; they stand convicted on two counts of homicide for committing Qatl-i-Amd of Mushtaq, 35 and Muhammad Shahid, 30, hereinafter referred to as the deceased, at 8:15 p.m. on 1-3-2009 within the area of Aminpura situating one kilometer from Police Station Raiwind Lahore; sentenced to death and imprisonment for life on each count respectively, alongside compensation and consequences in default thereof, they dispute the vires of impugned judgment dated 18-11-2013. Muhammad Imran, Muhammad Akram and Allah Rakha co-accused, were acquitted from the charge. Murder Reference No, 172 of 2015 by the State seeks confirmation of death penalty; Crl. Appeal No, 1598 of 2013 filed by Muhammad Ilyas appellant along with Crl. Appeal No, 1604 of 2013 by Ali Akbar & Asghar Ali appellants dispute the validity of the impugned judgment; Crl. Revision No, 229 of 2014 by the complainant is for the enhancement of sentences.
2. At the very outset, learned counsel for the appellant contends that as Muhammad Ilyas appellant was not afforded opportunity of cross-examination on Farhan Khalid PW, therefore, case be remanded for re-hearing in the interest of justice. Places reliance upon Article 10A of the Constitution of Islamic Republic of Pakistan, 1973. Learned Law Officer assisted by learned counsel for the complainant, though blamed. Muhammad Ilyas appellant for his failure to arrange cross- examination despite ample opportunities, nonetheless, conceded that his conviction is in the backdrop of absence of cross-examination on Farhan Khalid PW, an eye-witness, who unreservedly pointed his accusing finger upon the culpability of Muhammad Ilyas appellant. The record reflects chequered history of the trial wherein the accused are seemingly behind the delay in conclusion of trial for reasons that included absence of their counsel as well as strikes by the lawyers on more than one occasion.
3. No doubt, cross-examination of a witness in a criminal trial is a most valuable right, more so in a case, being visited with capital sentence, exercise of this right, however, cannot be held in abeyance to a point of time of accused's selection or choice; fair trial, by any stretch of imagination, does not mean harassm ent or exasperation of the witnesses, an essential component in the judicial system in aid of justice. In the present case while the conduct of Muhammad Ilyas appellant is far from being unblemished, nonetheless, there is failure on part of the learned trial Court to arrange his cross-examination through a dock counsel; there is no mention if the appellant relied upon cross-examination conducted on behalf of his co-accused, in view thereof, horrendous consequences may possibly follow to his detriment, therefore, with the concurrence of learned counsel for the appellant as well as learned Law Officer assisted by the learned counsel for the complainant, impugned judgment dated 18-11-2013 is set aside and the case, is remanded with a direction to the learned trial Court to summon Farhan Khalid (PW-2) for the purposes of cross- examination by Muhammad Ilyas appellant alone on examination-in-chief already recorded; the exercise shall be concluded within a period of 30-days, after receipt of this order; learned counsel for the appellant pledges at the bar to avail the opportunity, positively, within the stipulated period of time with no claim on any other witness. The learned trial Court shall decide the case afresh after affording opportunity of hearing to the appellants as well as the State. Remission of the case shall not impact upon the acquitted co-accused; the appellants shall remain in custody unless directed otherwise by the learned trial Court in the wake of decision afresh. In the event of finding of guilt once again, the issue shall be placed in the docket relating to the year 2013. By necessary implication Murder Reference No, 172 of 2015 is answered in the NEGATIVE and death sentence is NOT CONFIRMED, Crl. Revision No, 229 of 2014 also loses its efficacy, Crl. Appeals No, 1598 & 1604 of 2013 are disposed of in the above terms. Office to transmit record to the learned trial Court forthwith.