This appeal has been sent by Nusrat son of Malik Afsar Awan against the judgment dated 30-11- 1995 passed by the learned Additional Sessions Judge, Rawalpindi in Hudood Case No.85/94, whereby the appellant has been convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to 3 years' R.I. Benefit of section 382-B, Cr.P.C. Has been extended to the appellant. I have heard the arguments of Syed Raza Abbas Naqvi, learned counsel for the appellant and Mr. M. Saliheen Moghal, learned counsel for the State.
2. According to the prosecution case (F.I.R. No.408 dated 15-8-1992 P.S. Wah Cantt., District Rawalpindi), on the morning of 15-8-1992, complainant Mst. Safiya Bibi (aged about 17 years) went for answering the call of nature when the appellant appeared in naked condition, caught hold of the complainant, put her on the ground with the object of committing Zina but, on the cries of the complainant, P.Ws. Were attracted and the appellant could not succeed in his evil design. The appellant, who ran away, according to the prosecution witnesses, was arrested on the next day and, after completion of investigation, he was challaned under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Four witnesses appeared at the trial on behalf of the prosecution, namely, complainant P.W.1 Mst. Safiya Bibi; P.W.2 Muhammad Sabir, who was attracted to the scene of the incident on the cries of the complainant; P.W.3 S.I. Shafique Ahmad Mirza, who had formally recorded the F.I.R. And P.W.4 I.O. Muhammad Aslam Khan. The record shows that, when the evidence of the 4 prosecution witnesses was recorded, no Advocate on his behalf was present and the appellant did not cross-examine any witness. After the conclusion of the prosecution ,evidence, the case was adjourned to 1-11-1995. In the meantime, on 29-10-1995, an application for bail of the appellant was moved which was granted and the appellant who had been taken into custody was released on bail again. The next date of hearing before the trial Court, as observed, was 1-11-1995 when an application was moved by learned counsel for the appellant under section 540, Cr.P.C. To give an opportunity to the appellant through counsel to cross- examine the witnesses of the prosecution. On the same day statement of the appellant was recorded under section 342, Cr.P.C. And, later on, by order dated 19-11-1995, the application moved on behalf of the appellant under section 540, Cr.P.C. Was dismissed on the ground that the evidence had already been completed. As noted, by judgment dated 30-11-1995, the trial Court convicted and sentenced the appellant.
3. Syed Raza Abbas Naqvi, learned counsel for the appellant, has submitted that this is a case of miscarriage of justice pointing out, within 3 months of the case having been registered, the appellant was granted bail by the learned Sessions Judge, Rawalpindi, but the Sessions case did not proceed against the appellant and was adjourned sine die. According to learned counsel, later on the appellant, who was on bail, received notice from the Court and he appeared but did not inform the counsel and, as noted, the evidence of the witnesses of the prosecution was recorded in the absence of the counsel for the appellant. It is further informed by learned counsel for the appellant that the family of the appellant later on informed the learned counsel that the trial had started and that appellant had been taken into custody again. When inquiries were made it came to light that the appellant had been taken into custody again as he had appeared late and in the meantime the entire evidence of the prosecution had already been concluded. According to learned counsel, 'in the circumstances, it was a fit case for grant of application under section 540, Cr.P.C. Moved on behalf of the appellant despite the fact that the evidence of the prosecution had already been concluded when the said application under section 540, Cr.P.C. Had been filed.
Learned counsel submits that it is a fit case for remand to enable the appellant through counsel to cross-examine the prosecution witnesses.
4. Mr. M. Saliheen Moghal, learned counsel for the State, submits that though the application under section 540, Cr.P.C. Had been filed at a late stage when the evidence of the prosecution has already been concluded, in view of the facts stated by learned counsel for the appellant, the Court may consider remand of the case for enabling the appellant to cross-examine the prosecution witnesses.
5. In view of the facts and circumstances referred to above, in my view, the appellant has been prejudiced in his defence on account of the prosecution witnesses having not been cross- examined. Under section 540, Cr.P.C. The Court can re-examine any witness if his evidence appears to the Court essential for the just decision of the case. Learned counsel for the appellant has already referred to the background on account of which the prosecution witnesses could not be cross-examined. Right to cross-examine is not an empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. In the circumstances, the appellant should not be penalized for absence of his Advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned Single Judge of the Sindh High Court in the case of Altaf Hussain Shamim v. State PLD 1992 Karachi 91 in which judgment reliance has been placed on several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case, the prosecution witnesses should have been recalled in the circumstances of the case.
6. As a result, the impugned judgment dated 30-11-1995 of the learned Additional Sessions Judge, Rawalpindi (Hudood Case No.85/94) is set aside and the case is remanded with the direction that 3 prosecution witnesses, namely, P.W.1 complainant Mst. Safiya Bibi, P.W.2 Muhammad Sabir and P.W.4 I.O. Muhammad Aslant. Khan will be recalled and allowed to be cross-examined on behalf of the appellant. After this exercise has been completed, a fresh statement under section 342, Cr.P.C.
Shall be recorded and, in case the appellant desires, he will be allowed to give his statement on oath under section 340(2), Cr.P.C. If the appellant wants to produce any witnesses in defence, such opportunity will also be extended to him. The appellant shall be released on bail on his furnishing one surety in the sum of Rs.30,000 with personal bond in the like amount to the satisfaction of the trial Court.
This is an old case, it is directed that the case be finalized by the trial Court by 15-5-1995 with compliance report to the Registrar of this Court.
Criminal Appeal No. 18-1 of 1996 stands disposed of in the above terms.