TARIQ SALEEM SHEIKH, J.---Through this revision petition under sections 435/439, Cr.P.C. the Petitioners have assailed the vires of order dated 26.9.2019 passed by the learned Additional Sessions Judge, Rajanpur , whereby he closed their right to cross-examine Habibullah/Respondent No.2 (PW-1), Faisal Iqbal (PW-2), Abdul Rasheed (PW-3) and Hafeezullah (PW -8).
2. Brief facts of the case are that an 23.7.2016 Respondent No.2 (PW-1 Habibullah) came to Faiz Muhammad/ASI and stated that he had gone to Rajanpur City with PWs Farooq, Hafeezullah, Imda d Hussain alias Baggu, Asif and Faisal to buy certain articles for the dowry of Faisal's sister . At about 06:05 p.m. when they were returning home Petitioners Jahangir alias Akram, Farooq Ahmad, Romaan Tariq alias Noman, Talib Hussain and Muhammad Kaleem, armed with deadly weapons formed an unlawful assembly and in prosecution of its common object attacked them. As a result, Imdad Hussain alias Baggu and Asif were killed and Faisal was injured. Respondent No.2 alleged that Petitioners Muhammad Tariq and Muhammad Sadiq had abetted the offence. Faiz Muhammad/ASI reduced his statement to writing and sent the complaint to Police Station City Rajanpur on the basis of which FIR No.354/2016 dated 23.7.2016 for offences under sections 302, 324, 148, 149, 109, P.P.C. was registered. During investigation the police declared Petitioners Farooq Ahmad, Talib Hussain, Muhammad Kaleem and Muhammad Sadiq innocent. Dissatisfied with this conclusion Respondent No.2 filed a private complaint. The learned Additional Sessions Judge recorded his cursory evidence and holding that on a tentative assessment there was sufficient material against the Petitioners summoned them to face trial. On 2.1.2018, he indicted them and directed the prosecution to produce evide nce to prove its case. During the proceedings the prosecution examined 10 witnesses. The examination-in-chief of Habibullah (PW-1), Faisal Iqbal (PW-2) and Abdul. Rasheed (PW-3) was recorded on 14.2.2018 and that of Hafeezullah (PW-8) on 8.11.2018 but their cross-examination was reserved on the, request of the defence. The learned Court afforded a number of opportunities to the Petitioners to produce their counsel and cross-examine the said witnesses but they did not. Eventually due to their contumacious conduct it closed their right of cross-examination vide order dated 26.9.2019. Hence, this petition.
3. The learned counsel for the Petitioners contended that right of cross-examinati on was a valuable right and the impugned order had exposed the Petitioners to a certain conviction on a capital charge. He maintained that the prosecution was equally liable for the delay in conclusion of the trial but the Court had unduly penalized the Petitioners. On /6.9.2019 their counsel was not available because of his pre-occupation before the Lahore High Court, Multan Bench, so he made a written request for adjournment to the learned trial Court which was supported by the cause list. The request was genuine yet the Court declined it and struck off the Petitioners' right to cross- examine the witnesses. He maintained that the impugned order had caused serious miscarriage of justice and was liable to be set aside.
4. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for Respondent No.2/Complainant controverted the above contentions. He contended that the Petitioners were given umpteen opportunities but they chose not to cross-examine the witnesses. The learned Additional Sessions Judge was thus justified in proceeding against them and no exception could be taken to the impugned order . He prayed for dismissal of this petition.
5. Arguments heard. Record perused.
6. The concept of fair trial is central to the administration of justice. The right to cross-examine witnesses is a component of the right to a fair trial and is considered to be "the greatest legal engine ever A invented for the discovery of truth." In an adversarial legal system it is "primary evidentiary safeguard". Jonathan low explained: "This most basic feature of an adversarial legal system guarantees criminal defendants the right to have, the prosecution's witnesses testify in open court and the opportunity to question said witnesses in front of the jury.
Cross-examination is premised on the idea that face-to-face confrontation in open court between these witnesses and the defendant provides the strong est assurance of accurate testimony and, consequently , of protecting defendants from unjust convictions. Through cross-examination, a defendant can introduce facts from the witness not raised on direct examination and challenge the credibility of that witness, both of which are relevant to a jury's determination of guilt."
7. In view of the foregoing, courts all over the world have always jealously guarded the right of cross-examination of an accused. In Browne v. Dunn, Lord Halsbuty [(1893) 6 R: 671, British House of Lords held that "nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given." In the case cited as Abel v. The Queen [(1955), 115 C.C.C. 119 (Que. Q.B.)] the Court held that "there can be no question of the importance of cross-examination....It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence." Similarly, in Mechanical and General Inventions Co. Ltd. v. Austin and the Austin Motor Co. Ltd. [(1935) AC 3461 the Court described cross-examination as the "powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story." This observation was reiterated in Wakeley v. The Queen [(1990)
93 ALR 79, 86].
8. In Davis v. Alaska [415 U.S. 308 (1974)] , the Supreme Court of United States held that "cross-examination is the principal means by which the believability of a witness and the truth of his testimony tested." In another case, cited as Wolff, Warden, Et Al v. McDonnell [418 U.S. 539 (1974)], the Supreme Court observed that "without any right to confront and cross-examine adverse witnesses, the inmate is afforded no means to challenge the word of his accusers. Without these procedures, a disciplinary board cannot resolve disputed factual issues in any rational or accurate way. The hearing will thus amount to little more than a swearing contest, with each side telling its version of the facts--and, indeed, with only the prisoner's story subject to being tested by cross-examination. In such a contest, it seems obvious to me that even the wrongfully charged inmate will invariably be the loser . I see no justification for the court's refusal to extend to prisoners these ,procedural safeguards which in every other context we have found to be among the minimum requirements of due process."1 2 3
9. In Michael Garfield Lyttle v. Her Majesty The Queen (2004 SCC 5), the Supreme Court of Canada ruled that "the right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence. The right of cross-examination, which is protected by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, must be jealously protected and broadly construed."
10. In Muhammad Hussain alias Julfikar Ali v. State (Govt. of NCT of Delhi) (AIR 2012 SC 750 = 2012 SCMR 1610 ) the Supreme Court of India observed that "the fate of the criminal trial depend s upon the truthfulness or otherwise of the witness and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfuln ess of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected."
11. In Pakistan also the Courts recognize that the right of accused to cross-exa mine the witnesses is the most valuable right. In Ghulam Rasool Shah and another v. The State (2011 SCMR 735) the Hon'ble Supreme Court held: "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 . Statement recorded without going through the mill of cross-examination is bound to result in injustice to an accused."
12. In the instant case, the Petitioners used dilatory tactics from the very inception and hampered the trial. Most often they did not produce their counsel on the pretext that he was busy elsewher e. Eventually , on 14.2.2018, the learned Additional Sessions Judge recorded the examination-in-chief of Respondent No. 2/Complainant, Habibullah (PW-1) and two other prosec ution witnesses, Faisal Iqbal (PW-2) and Abdul Rasheed (PW-3). The Petitioners did not cross-examine them and sought adjournment. On 7.3.2018, examination-in-chief of Habibullah Patwari (PW-4) and Abdul Rasheed 6/C (PW-5) was recorded while on 4.4.2018 , 15.5.2018 and 8.11.2018 the statements of four more witnesses, name ly, Dr. Lain Bashir (PW-6), Mushtaq Hamid/SI (PW-7), Hafeezullah (PW-8) and Pir Bakhsh (PW-9) were put down. The Petitioners did not cross-examine any of them and kept seeking adjournments due to non-availability of their counsel. The learned trial Court gave them warning on various dates of hearing but they fell on deaf ears. On 26.9.2019, when the Petitioners again asked for adjournment the Court refused and directed them to cross-examine the witnesses then in attendance themselves, namely , Habibullah (PTV -1), Faisal Iqbal (PW-2), Abdul Rasheed (PW-3) and Hafeezullah (PW-8). They did not do so whereupon it closed their right qua them. The pivotal question is whether on the facts and in the circumstances of the case the learned Additional Sessions Judge was justified in taking the impugned action.
13. Cross-examination is an art. In Powell v. Alabama [287 U.S. 45 /932)] , Sutherland J. observed that a layman even if intelligent and educated is not trained in this skill and cannot effectively cross-examine a witness. The courts have thus consistently held that cross-examination by an accused himsel f on a prosecution witness can neither be equated nor substituted with the cross-examination by a counsel. In this context reference may usefully be made to Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Muhammad Shahid v.
The State (2010 PCr.LJ 812), Ghulam Sarwar v. The State (2010 MLD 1775 ), Ghulam Rasool Shah and another v. The State (2011 SCMR 735), Waqar and another v. The State (2013 PCr.LJ 1279) and Sadam Hussain v. The State (2018 MLD 1025 ). Therefore, the direction of the learned Additional Sessions Judge to the Petitioners to cross-examine the witnesses themselves was inapt.
14. Admittedly , there is no provision in the Criminal Procedure Code, 1898, which specifically empowers the trial Court to guillotine the accused's right of cross-examination. However , this does not mean that he can abuse the process of law with impunity and take the Court hostage. Hence, when he deliberately avoids to produce his lawyer , the Court may appoint a defence counsel at State expense and proceed with the trial Abdul Ghafoor v.
The State (2011 SCMR 23 ) is a case in point wherein the Hon'ble Supreme Court of Pakistan held: "With immense respect to the learned Judges of the High Court, we are persuaded to hold that it is the primary responsibility of the court seized of a matter to ensure that the truth is discovered and the accused are brought to justice. If the learned trial Court found that the counsel engaged by the Appellant had sought too many adjournments, even then he was not appearing, the court could either have directed that a defence counsel be provided to the Appellant at State expense or could have given last opportunity to the Appellant to make alternate arrangements failing which the court would proceed to decide the matter . This course was not adopted by the learned trial Court and instead on 2.12.1999 gave a total surprise to the Appellant by asking him to cross-examine those witnesses for which obviously neither the Appellant had the requisite expertise nor he was prepared to do so.
In these circumstances and in view of the fair concession given by the State, we find that the procedure adopted by the learned trial Court is reflective of miscarriage of justice and the Appellant be provided one opportunity to have the afore-referred witnesses cross-examined."
Similar view was expressed. in Ghulam Rasool Shah's case, supra . Relevant excerpt therefrom is reproduced below: "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 expense of their choice out of the list maintained by the Court. If the accused fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expense, 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."
15. From the above discussion it is evident that the impugned order dated 26.9.2019 is contrary to law and has caused serious miscarriage of justice. Accordingly , this petition is accepted , the said order is set aside and the learned Additional Sessions Judge is directed to provide the Petitioners one opportunity to produce their counsel and cross-examine the prosecution witnesses. If they fail to do so, he shall appoint a defence counsel and conclude the trial in accordance with law . Lilly v. Virginia reported at 527 U.S. 116 (1999), California v. Green, 399 U.S. 149 (1970). Ellison, 'The Protection of Vulnerable Witnesses in Court' (Reproduced in Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation, an article by Phoebe Bowden, Terese Henning And David Plater. Throwing a toy wrench in the "greatest legal engine": child witnesses and the confrontation clause, by Jonathan Clow published in Washington University Law Review, Volume 92 Issue 3, 2015.