Muhammad Hussain vs Judge Accountability Court No. I and four others

"A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures - a trial in which every assumption can be challenged" (Harry Browne)^[1]"

SOHAIL NASIR J. The proposition before us also involves the question of Constitutional guarantee of fair trial which according to Muhammad Hussain (petitioner/accused) has been denied to him.

He, therefore, through the instant Writ Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) has assailed the legality and correctness of an order dated 04.03.2022, passed by the learned Judge Accountability Court No. I, Multan (trial court) on the basis whereof an application submitted by him for issuance of direction to Muhammad Sohail Kamran Assistant Director/Investigating Officer (Pw-30) to produce the complaint verification status (CVS) dated 26.10.2017 have been dismissed.

2. All learned counsel for petitioner jointly contend that the learned trial court without application of mind to the facts and circumstances of case has dismissed the application which has caused a serious prejudice to the case of petitioner who is facing the criminal charges in a Reference submitted by NAB^[2] under Section 18 of the NAO^[3].

3. On the other hand learned Law Officers for NAB collectively argued that earlier similar application moved by petitioner was dismissed by the learned trial court vide an order dated 23.12.2021 which was challenged before this Court through a Writ Petition but of no success as it was dismissed in limine, therefore, the matter cannot be reopened; the CVS, petitioner has desired to be produced, was an anonyms complaint on which no inquiry was conducted hence by making such request, in fact, petitioner wants to prolong the proceedings of the case. They finally maintain that if petitioner finds the report of any worth, he can produce the same in his examination to be made under Section 342 Cr.P.C^[4].

4. HEARD

5. Admittedly a Reference^[5] titled 'The State versus Muhammad Hussain & another' filed by NAB, on 16.08.2019, is pending adjudication before the learned trial court. After it was brought in the court, petitioner, on 19.11.2019, moved an application before the learned trial court for issuance of a direction to NAB Authorities to produce the record of earlier complaint^[6]. This petition remained undecided till the examination in chief of Muhammad Sohail Kamran Assistant Director/ Investigating Officer (Pw-30) was made. However before cross-examination could be started, petitioner again, on 09.11.2021, submitted similar application for issuance of direction for production of record of CVS (ibid) which along with earlier application moved 19.11.2019 were dismissed vide an order dated 23.12.2021 passed by the learned trial court. Being aggrieved from that order, petitioner approached this Court through a Writ Petition (183 of 2022) which could not succeed as it was dismissed in limine vide an order dated 11.01.2022 while observing in paragraph No.6, as under: - "However the petitioner is at liberty to voice his grievance at the relevant time of producing his defence under the relevant provision of law."

6. No doubt that in earlier order the matter was left open for petitioner at the stage of defence proceedings but after the order dated 11.01.2022 passed by this Court the scenario was completely changed because first time Muhammad Sohail Kamran (Pw-30), on 19.01.2022, faced the test of cross examination where he admitted receiving of earlier complaint by NAB on 26.10.2017 against petitioner. The relevant replies of his cross-examination are as under: - i. It is correct that a complaint was received previously on 26.10.2017. Volunteered, that in the said application no name of any Benamidar was mentioned. ii. It is correct that whenever a complaint is received, it is checked from the record of the NAB whether any complaint of such nature was previously received or not. iii. The entry of name as mentioned in the complaint is verified from the record available. iv. It is correct that if previous complaint is found, the inquiry of such complaint is linked with the present complaint. v. It is correct that such record should be available on Website. Volunteered, that the said facility is not available at Multan. vi. The said application dated 26.10.2017 may have been numbered. The record of said application cannot be brought as the said is concerning the CV stage. vii. Mumtaz Bajwa was Additional Director (Staff). viii. It is correct that as per copy of letter dated 18.12.2017 the said Additional Director summoned record from MEPCO about the accused in the said previous complaint. ix. The record of the accused would have been obtained by the said Additional Director in the previous complaint about service of the accused. x. Detailed record of the accused about his service would have been summoned according to which previous complaint was disposed of to the extent to Muhammad Hussain, accused.

7. The Investigating Officer in the Criminal Justice System is the most relevant person because he is the one who is bound to collect the evidence and his duty under the law is to discover the truth. He is the man who in cross examination, if defence desires, is required to be confronted from all the facts so as to shatter his credibility before the court. The exposure of conduct of Investigating Officer on the strength of cross examination is also a facilitating point for the court to arrive at the just decision of the case.

8. This Court in Muhammad Asif Ali Usama's case^[7] on objective of judicial proceedings in a criminal trial had observed as under: - "There is no cavil to this proposition that solitary purpose of judicial proceedings in a criminal case is to discover the truth and to arrive at a just decision of the case. The word 'Just' is significant that means 'Right, Fair, Well founded'. Therefore, every effort should be made by the court that no aspect of the case is to be left unattended, prior to declaration of final verdict as was stated by Judge Learned Hand^[8]: - "A Judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert^[9]"

9. The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge. The right to fair trial is now a fundamental and constitutional right belonging to every citizen of Pakistan. It extends not only to criminal charges but also to civil rights and obligations. Pursuant to 18th amendment (Act 10 of 2010) Article 10-A was inserted in the Constitution that is as under: - "10-A. Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process"

10. The honorable Supreme Court of Pakistan in Naveed Asghar's Case^[10] on the importance of right of fair trial was pleased to hold that: - "No matter how heinous the crime, the constitutional guarantee of fair trial under Article 10-A cannot be taken away from the accused.

It may be pertinent to underline here that the principles of fair trial have now been guaranteed as a Fundamental Right under Article 10-A of the Constitution and are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of, or criminal charge against, any person"

11. Again on the similar proposition the apex Court in Muhammad Bashir's case^[11] was pleased to hold as under:- "The Constitution of the Islamic Republic of Pakistan prescribes important safeguards against depriving a person of his "life or liberty" and with regard to arrest and detention, which includes "the right to consult and be defended by a legal practitioner of his choice". The Constitution also mandates a "fair trial and due process". A person arrested for an offence (1) must be informed of the grounds of his arrest; (2) must be permitted to consult with and be defended by a lawyer; (3) must be provided with the information of the offence he is charged for; (4) must be provided with an opportunity to cross-examine witnesses who depose against him; (5) must be given an opportunity to explain the circumstances disclosed in evidence against him; and (6) must also be provided an opportunity to produce evidence in his defense. These are also necessary ingredients to ensure the fairness of a trial."

12. It is needless to observe here that right of fair trial by now is globally recognized in the light of Articles 10 and 11 of the Universal Declaration of Human Rights^[12], that has guaranteed that everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal, in the determination of any criminal charge against him and he shall have all the guarantees necessary for his defense. Dr. Markus Englerth^[13] in his Article published by Liberal International^[14] has elaborated ten basic rights^[15] of accused in criminal proceedings and those are: - i. Presumption of innocence. ii. Freedom from self incrimination. iii. Right to a hearing and effective remedy. iv. Swiftness of Justice. v. Access to counsel and other assistance. vi. Equal fighting chances. vii. Transparency. viii. Proportionality of means. ix. Impartiality and non discrimination and x. Dignity.

13. Undeniably all these rights come under the umbrella of 'Fair Trial' and cannot be denied to any accused.

14. We are unable to understand that why the NAB Authorities are reluctant to produce the record of CVS despite the fact that the same is in its possession and why they are on point of no return?

This shows some foul play on its part so we cannot allow such unfair rules of the game.

15. While summing up the discussions made above, we hold that the learned trial court while dismissing the application did not assign any good reason and that has deprived the petitioner from the Constitutional guarantee of fair trial, hence this Writ Petition is allowed. Impugned order dated 04.03.2022 is set aside and application dated 02.03.2022 filed by petitioner is accepted with direction to learned trial court to proceed in the matter further in accordance with law.

16. It is made clear that any observation recorded in this order is tentative in nature and the learned trial court shall draw no inference while deciding the case finally.

^[1](June 17, 1933 - March 1, 2006) he was an American writer, politician, and investment advisor.

^[2]National Accountability Bureau ^[3]National Accountability Ordinance (XVIII of 1999)

^[4]Code of Criminal Procedure (Act v of 1898)

^[5]No. 17-M of 2019 ^[6]No. NABM20171030102763/CVC/300/09 ^[7]Muhammad Asif Ali Usama vs. The State & another PLJ 2021 Cr.C 1565 and 2022 PCRLJ 59 ^[8]Billings Learned Hand, January 27, 1872 - August 18, 1961) was an American judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit. As of 2004 Hand had been quoted more often by legal scholars and by the Supreme Court of the United States than any other lower- court judge. (https://en.wikipedia.org/wiki/Learned_Hand)

^[9]United States v. Marzano, 149F.2D 923 (2nd Cir. 1945)

(https://law.justia.com/cases/federal/appellate-courts/F2/149/923/1507656/)