ALI ZIA BAJWA, J. Through instant revision petition, order of learned Additional Sessions Judge, Shujabad dated 14.07.2021, through which learned trial court struck off the right of petitioner to cross-examine the prosecution witnesses has been assailed.
2. Succinct facts which led to the institution of instant revision petition are that a Criminal case No. 652/18 dated 29.09.2018, offence under section 376 or Pakistan Penal Code, 1860 (P.P.C.) was got registered by respondent No.2 i.e. Mst. Salma Bibi against the petitioner, with Police Station City Shujabad, District Multan, alleging that petitioner committed rape with her. After submission of report under section 173, Cr.P.C., petitioner was summoned by the learned trial court to stand the trial.
3. During the course, of trial, examination-in-chief of two prosecution witnesses were recorded as PW-1 and PW-2. Several opportunities were provided to petitioner to cross-examine these witnesses but upon his failure, his right to cross-examine was struck off by the learned trial court vide order dated 24.10.2020. That order was assailed by the petitioner before this Court by filing a revision petition, which was allowed vide order dated 18.12.2020 and ONE last opportunity was granted to him to cross-examine PW. 1 and PW.
2. It was held that upon his failure to cross-examine these witnesses, law would take its own course. It is contended by learned counsel for the petitioner that after the order of this Court, on several dates fixed for cross-examination, said PWs didn't appear before the court but when counsel of petitioner couldn't appear on 14.07.2021, right of petitioner to cross-examine the prosecution witnesses was again closed by the learned trial court.
4. Arguments heard. Record perused.
5. Perusal of record establishes that this is a case of capital punishment as petitioner is facing trial for alleged rape of complainant Mst. Salma Bibi. Right of cross-examination is most valuable right of an accused person to discredit the veracity of statements of prosecution witnesses. The right to confront one's accusers is most precious right an accused enjoys during course of trial. Right of confrontation is based on the rationale that justice requires that accused and accuser meet face to face in the courtroom. Right to confrontation was splendidly articulated by John Henry Wigmore stating that cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth.[1]Chief Justice M. Monir expounds the essence of cross-examination in his celebrated book[2] as under: Cross-examination is the most effective of all means for extracting truth and exposing falsehood.
The object is to impeach the accuracy, credibility and general value of the, evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party.
Taylor elaborates the concept of cross-examination in his book[3] as infra: "Cross-examination is justly regarded as one of the most efficacious tests by means of which the law has devised for the discovery of truth and by means of which the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used the means, his power of discernment, memory and description are fully investigated and ascertained..."
In Kartar Singh[4] Supreme Court of India while elaborating the purpose and object of cross- examination in the following words: "it is jurisprudence of law that cross-examination is an acid test of the truthfulness of statement made by a witness on oath in examination-in-chief"
6. The credibility and truthfulness of a witness is assessed from his answers to the questions put to him during the cross-examination. This right is based upon the principle of natural justice that no one should be condemned unheard commonly known as 'audi alteram partem' and in the criminal trials, accused is heard through the cross-examination of prosecution witnesses. Principle of natural justice requires that if court is going to place any reliance on evidence against a person then such evidence should be placed before such person for her/his information, comment and criticism. Whenever court is going to rely upon statement of a witness against the accused, he should be provided an opportunity to challenge the credibility and truthfulness of such witness and if he is denied this opportunity, it will amount to condemn him unheard. Importance of cross- examination was well elaborated by august Supreme Court of Pakistan in Ghulam Rasool Shah[5], in following the words: "14. 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 he the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice and substantial injustice may occur to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity..."
7. Right of cross-examination is a statutory right recognized and provided under Article 133, Qanun- e-Shahadat,1984. In a criminal case, true spirit. Right to fair trial, which is now enshrined in constitution in it is obligatory upon the court to fulfil this statutory requirement in its our country under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution'), includes right of an accused to confront his accuser. Article 10-A has been reproduced hereunder: "10A. 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."
In a fair and transparent criminal justice system, the right to confrontation is the hallmark fair trial protection. Right to confrontation is considered an integral element of right to fair trial. It was held In Muhammad Bashir[6] by the prestigious Supreme Court of Pakistan that right to confront one's accuser is vital part of right to fair trial. Relevant part has been' reproduced hereinafter: The Constitution also mandates a "fair trail and due process"
4. A person arrested for an offence
(1) must be informed of the grounds of his arrest; (2) must be permitted to consult with and he defended by a lawyer; (3) must he 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.
In Muhammad Aslam[7] it was pronounced that: "To defend any criminal proceeding, whether heinous or minor, is a fundamental and essential right of an accused protected under Article 10-A of The Constitution of Islamic Republic of Pakistan, 1973 and Articles 133 and 151 of the Qanun-e-Shahadat Order, 1984. Right of cross- examination is not merely a formality but a valuable right conferred by the law. Even otherwise, in reaching the just and fair conclusion of trial, the appellant must not be stripped of his valuable right of fair, reasonable and impartial trial in due course of law and to do away with the same, is the negation of concept of due process of law."
8. In United Kingdom the trial of Sir Walter Raleigh is often taken to be paradigmatic of the possibility of abuse in a system without confrontation. Raleigh was convicted of treason, largely on the basis of the testimony of Sir Thomas Cobham (accomplice), who had apparently told his questioners that Raleigh had been part of a plot to overthrow James I.[8] Trial of Sir Walter Raleigh is considered keystone of right to confront one's accuser, though it was blatantly violated in that trial. In 1603 Sir Walter Raleigh was convicted for high treason on the written statement of Lord Cobham, his accomplice, without providing him an opportunity to cross-examine his accuser as prosecution refused to produce Cobham in court during trial. Raleigh pled that Cobham be brought to the court, but the prosecution refused. Historical words of Sir Walter Raleigh later became the foundation of right to confrontation are reproduced infra: "let Cobham be here, let him speak it. Call my accuser before my face, and I have done."[9]
9. Article 6(3) of the European Convention on Human Rights (ECHR) provides that 'everyone charged with a criminal offence' has the right to 'examine or have examined witnesses against him'. This principally means that the accused, or his lawyer, should have a chance to put questions to adverse witnesses.
10. The Sixth Constitutional Amendment in United States of America, which is part of Bill of rights[10], provides that a person accused of a crime has the right to confront a witness against him or her in a criminal trial. This includes the right to be presented at the trial (which is guaranteed by the Federal Rules of Criminal Procedure Rule 43). The Confrontation Clause found in the Sixth Amendment provides that: "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."
In Crawford[11] it was concluded by the Supreme Court of United States of America that the ultimate goal of the confrontation clause is to ensure reliability of evidence. It is a procedural rather than a substantive guarantee. The confrontation clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner i.e. by testing in the crucible of cross- examination.[12] In Turner[13] while elaborating the right to confrontation it was held by Supreme Court of United States of America that it preserves the constitutional guarantee in a criminal case that evidence developed against an accused shall come from the witness stands in a public courtroom where there is full judicial protection of right to confront one's accuser is provided to an accused.
11. Reference of aforementioned provisions and judicial verdicts clearly establishes that right to confront one's accuser is integral component of right to fair trial as guaranteed under Article 10-A of the Constitution and provided under Article 133 of Qanun Shahadat, 1984. Right to cross-examine a witness produced by the adversary cannot be struck off as it would amount to violation of right to fair trial. No provision could be pointed out by the learned Prosecutor General, Punjab appearing on behalf of state in Code of Criminal Procedure, 1898 or any other law governing the criminal trial, which empowers the trial court to close the right of an accused to confront his accuser. A right provided under the statute cannot be abridged or taken away without an explicit provision of law, which in the present case is not available on statute books. A right provided under the law, in absence of provision to contrary, cannot be impliedly taken away. Even otherwise, after declaring that right to confront one's accuser is part of right to fair trial ensured under Article 10-A of the Constitution, had there been any provision to abridge such right, it would have been ultra vires being in conflict with Constitution. l2. It is the duty of a court of law to make every effort to reach at a just conclusion and cross- examination by a trained and experienced counsel is the only way to assess the evidentiary value and credibility of a witness. In the absence of cross-examination, it would be very difficult for the learned trial court to sift the truth from the statement of a witness. In Abdul Raoof[14] , a time specific direction was issued by this Court to conclude the trial of offence under section 9-C of Control of Narcotic Substances Act, 1997 and learned trial court had struck off the right of cross- examination of accused when his counsel had failed to appear to cross-examine the witnesses. A Division Bench of this Court held that spirit of direction was only meant to conclude the trial expeditiously, however, in exceptional circumstances the time can also be extended in the interest of justice because if a prosecution witness is not cross-examined, then an accused person's case can be seriously prejudiced. Relevant extract is reproduced infra: "7. ...There is no denial of the fact that cross-examination is most valuable right of an accused and is the only vehicle through which the truth or falsity of the witnesses can be determined. We are also conscious of the fact that if a prosecution witness is not cross-examined then an accused person's case can be seriously prejudiced."
13. It is also observed with great concern that at times learned trial courts do compel the accused persons to cross-examine the witnesses herself/himself if counsel of such accused is not present.
This practice is unacceptable and cannot be allowed to carry on as it is settled law that cross- examination of witnesses by the accused herself/himself cannot be equated with that of by her/his counsel. This practice was discouraged by august Supreme Court of Pakistan in Syed Saeed Muhammad Shah[15]. wherein it was categorically held by august Court that: "34. ...Trial Courts did not make offer for engagement of counsel on Government expense to represent appellant Khuda Bakhsh at the commencement of trial which should have been done.
Cross-examination by accused himself is no substitute of cross-examination by the counsel."
In Abdul Ghafoor[16], learned trial court had asked the accused person to cross-examine the witnesses and august Court has deprecated this practice by holding that: "...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..."
Same view was reiterated by this Court in Mujahid Hussain[17], in the following words: "6. The approach of the learned trial Court is liable to be faulted on another count as well. Under no circumstances should it have asked the accused to cross-examine the witnesses produced by the prosecution. Time and again, it has been held by the superior Courts that the cross- examination by an accused can never be a substitute for the cross-examination carried out by a trained legal mind/counsel."
14. It is also observed that every so often presiding officers do cross-examine the witnesses on behalf of an unrepresented accused but I am unable to agree with such kind of practice too. The role of presiding officer is to adjudge the case of both the parties and to reach at a just conclusion after hearing them. By cross-examining on behalf of an unrepresented accused, court would lose her/his impartial role because while cross-examining the prosecution witnesses, court would effort to shake the credibility of witnesses and by doing so, impartiality of court would be compromised.
Though Article 161 of Qanun-e-Shahadat, 1984 empowers a court to put questions to the witnesses but said power should be used sparingly in exceptional cases, that too, to seek explanation of any fact narrated by the witness in his statement, whether in examination-in-chief or in cross- examination. This argument is supplemented by Rule 2 of Chapter 1-E, High Court Rules and Order Volume III, wherein it is provided that this power should be used judiciously to elucidate the facts left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. Relevant Rule is provided infra: "2. Duty of Court to elucidate facts. --Magistrates should endeavour to elucidate the facts and record the evidence in a clear and intelligible manner. As pointed out in 23 P.R. 1917, a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the court by Article 161 of the Qanun-e-Shahadat, 1984 should be judiciously utilised for this purpose when necessary."
Reliance is also placed upon the decision of august Supreme Court in Muhammad Ajmal[18], wherein august Court specifically held that such power should not be used in a manner to give an impression to one or the other party that the Court is inclined to favour the Defence or the Prosecution. Relevant extract is provided below: "19. True, that under Article 161 of the Qanun-e-Shahadat Order the Court has unlimited powers to put question in order to discover or to obtain proper proof of relevant facts however, it shall be directed only to achieve that object alone enabling the court to reach at a just conclusion but such questions shall be carefully put to a witness in such a manner so it may not give an impression to one or the other party that the Court is inclined in favour of the Defence or the Prosecution and one party or the other in a civil matter..."
Same view was taken by Dacca High Court in Syed Kanchan Ali[19], in following words: "The learned Additional Sessions Judge is certainly empowered to put questions to witnesses and, in proper cases, he ought to put some questions in order to clarify an obviously confused statement; but such power of questioning witnesses should be exercised with a good deal of caution and restraint. It is not the Court's function to place itself in the position of a cross- examining lawyer."
15. Despite what has been discussed above the accused cannot be allowed to hijack the trial proceedings in garb of safeguarding the right to fair trial. Accused at times attempts to linger on the trial proceedings with nefarious designs to temper with the prosecution evidence or avoid his expected conviction and penal consequences. which should not be permitted by the trial court.
Trial court in the present case was not helpless to proceed further without violating the right to fair trial. especially right to confront one's accuser. Under Rule 1, Part C, Volume 3, Chapter 24 of the High Court Rules and Orders, if an accused is unrepresented in a Sessions case and he cannot afford to engage a counsel, the Sessions Judge/Additional Sessions Judge is bound to make arrangement to employ a counsel at government expense for the said accused.[20] The aforementioned rule is reproduced hereunder for better understanding: - "If the accused is unrepresented and cannot afford to engage counsel, the Sessions Judge shall make arrangements to employee counsel at Government expenses and he may also appoint counsel, if he thinks fit, even when the committing Magistrate has considered that the accused has means enough to engage counsel himself. Counsel in such cases should be appointed in time to enable him to study necessary documents which should be supplied free of cost...."
Term "unrepresented" is of utmost importance and needs to be elaborated. According to Oxford Advanced Learners Dictionary: "Not Having representation"
According to Collins English Dictionary[21]: "If you are unrepresented in something such as a legislature, law court, or meeting, there is nobody there speaking or acting for you, for example to give your opinions or instructions."
Keeping in view the literal meaning of term 'unrepresented' as used in Rule 1, Part C, Volume 3, Chapter 24 of the High Court Rules and Orders this court has no hesitation to hold that an accused, who although has arranged a counsel, who also files his power of attorney on his behalf, shall deem to be `unrepresented' if his counsel does not appear before the court and unnecessary delay is caused in early conclusion of trial as occurred in this case.
16. As far as question that accused is entitled to have the counsel of his choice as provided under Article 10 of the Constitution and therefore counsel on state expense shall be violative of that Article is concerned, it is no doubt a constitutional right to have counsel of choice but such right is subject to the condition that accused should engage such counsel on his own. It shall be beneficial to reproduce the relevant part of Article 10 hereunder:
10. Safeguards as to arrest and detention.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
Court should appoint a counsel who is well versed, experienced and competent to represent an accused as matter pertains to life and liberty of an accused and it cannot be handed over to an inexperienced and untrained counsel. Appointment of counsel who is not capable and experienced to conduct criminal trial shall be violative of Articles 4, 9, 10 and 10-A of the Constitution. Accused cannot claim to be represented by a specific counsel of his choice when counsel to represent him is appointed on state expense, as was pronounced in Hakim Ali[22].
"It is no doubt true that, under the Constitution, an accused person has a right to be defended by counsel of his own choice but not necessarily at State expense. He can engage any counsel he likes; but, when he is not able to engage one, then the choice is no longer available to him. He has to be satisfied with the counsel assigned by the Court. In such cases, the counsel so engaged is not required to file a vakalatnama."
Same view was reiterated by the apex Court in Ghulam Rasool Shah supra holding: Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defence counsel maintained by the Court."
17. Whenever a trial court is confronted with such a situation, there will be two options available to such court, first is to adjourn the case for a future date or if learned trial court does not seem it appropriate to adjourn the case then to provide a capable and skilled counsel to the accused on state expenses to carry out cross-examination on prosecution witnesses or court witnesses, it' any.
This view is also fortified by the decision of august Supreme Court in Abdul Ghafoor supra, wherein august Court held that: "7. 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 may 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...
Same view was expounded by august Court in Ghulam Rasool Shah supra, by holding that: "15. 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 expenses of their choice, out of the list maintained by the Court. If the appellants fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expenses, 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 defense.
18. It is also pertinent to mention that learned trial court should keep in mind that provision of a defense counsel on state expense should not be taken as a mere formality by providing to an unrepresented accused a counsel who is not qualified, experienced and competent enough to conduct criminal trial, otherwise, the very object of providing a counsel shall be defeated. Trial court should ensure, while appointing defense counsel, that accused is not underrepresented. An underrepresented accused is an accused who has been provided with insufficient or inadequate representation. Right to fair trial demands not only representation but representation through an experienced, competent and trained advocate. Reliance is placed upon the decision of august Supreme Court in Ghulam Rasool Shah supra, wherein august Court has held that: "14. "...Similarly, provision of a defence counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case."
19. To sum up, I allow instant revision petition, resultantly, the impugned order dated 14-07-2021 closing the right of petitioner to cross-examine PW.1 and PW.2 is hereby set aside. Although learned counsel for the petitioner undertakes on behalf of petitioner that prosecution witnesses shall be cross-examined at the very first date of hearing but if needful is not done, learned trial court shall appoint counsel on state expense as envisaged under Rule 1, Part C, Volume 3, Chapter 24 of the High Court Rules and Orders and shall proceed with the trial expeditiously without letting petitioner/accused abuse the process of law any further.
20. It has further been observed that trial in this case is pending since long and conduct of petitioner is not aboveboard. Trial court is directed to conclude the trial within two months alter receipt of this order without further delay on day to day basis, if required, without any fail. Report qua the compliance of this order shall be submitted to Deputy Registrar (Judicial) of this Court.
1. 3 Wigmore, Evidence 1367, p. 27 (2d ed. 1923).
2. Law of Evidence by M. Monir Seventeenth Edition Page. 2270
3. Extract from Taylor on Evidence 5th edn., p-1238 reproduced in AIYAR& AIYAR'S THE PRINCIPLES AND PRECEDENTS OF THE ART OF CROSS-EXAMINATION, Tenth Edition published by Butterworths India at page-2.
4. Kartar Singh v. State of Punjab (1994) 3 SCC 569.
5. Ghulam Rasool Shah and another v. The State (2011 SCMR 735)
6. Muhammad Bashir v. Rukhsar PLD 2020 SC 334
7. Muhammad Aslam v. The State and others - 2017 PCr.LJ 1264
8. Confronting Confrontation by Mike Redmayne available on https://lawexplores. com/confronting-confrontation/
9. The life of the valiant and learned Sir Walter Raleigh, Knight with his trial at Winchester.by Shirley, John, 1648-1679.
10. The Bill of Rights comprises of first 10 Amendments to the Constitution of united states of America. It ensures the civil rights and liberties to the citizens.
11. Crawford v. Washington 541 U.S. 36 (2004)
12. A GUIDE TO CRAWFORD AND THE CONFRONTATION CLAUSE by Jessica Smith, UNC School of Government published in North Carolina Superior Court Judges' Benchbook.
13. Turner v. Louisiana 379 U.S. 466 (1965)
14. Abdul Raoof v. The State (PLD 2001 Lahore 463)
15. Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550)
16. Abdul Ghafoor v. The State 2011 SCMR 23
17. Mujahid Hussain v. The State and another 2016 MLD 1206
18. Muhammad Ajmal and others v. The State and another (2018 SCMR 141)
19. Syed Kanchan Ali v. Shahjahan and others (PLD 1962 Dacca 192)
20. Ghaffar alias Kali v. The State and others 2021 MLD 2058 [21]http://www.collinsdictionary.com/us/dictionary/english/unrepresented
22. Hakim Ali v. The State 1975 SCMR 1