The facts giving rise to the application under section 561-A, Cr.P.C. Are that the applicant Muhammad Jawed was facing trial under section 13-D of Arms Ordinance as a consequence of F.I.R. No. 194 of 1998, Police Station Mahmoodabad Karchi in the Court of learned IIIrd Judicial Magistrate Karachi, South. The charge against the accused/applicant was framed on 6-11-1999 and on 28-3-2000, prosecution examined P.C. Sikandar Azam and complainant A.S.I. Kamaluddin as Exhs.3 and 4 respectively. On 28-3-2000 when the witnesses were examined, the defence counsel was called absent and learned Magistrate provided an opportunity to the accused/applicant for cross-examination of the said witnesses which he could not avail.
Resultantly, the trial Court put certain questions to the witnesses and closed the prosecution side.
2. An application under section 540, Cr.P.C. Was moved before the learned trial Magistrate on behalf of the applicant/accused on 24-4-2000 for recalling the said prosecution witnesses which was rejected by the learned trial Magistrate vide, his order dated 3-5-2000.
3. The accused/applicant challenged the order of the learned Magistrate before the learned Sessions Judge, Karachi, South vide Criminal Revision Application No. 36 of 2000 which was also dismissed by order dated 5-7-2000, hence this application under section 561-A, Cr.P.C. Praying therein for setting aside the orders passed by the learned trial Court as well as the learned Sessions Judge, Karachi, South.
4. I have heard the learned counsel for the applicant and the learned A.A.-G. And have given anxious consideration to the facts and circumstances of the case.
5. The prayer made by the applicant was, refused by the learned Sessions Judge (South), Karachi for the following reasons:-- (i)That no adjournment application was moved on behalf of the defence counsel.
(ii)The statement of the accused was already recorded.
(iii)The trial Court had given chance to the accused to cross-examine the witnesses but he did not avail the same.
6. Being conscious of the inordinate delay in conclusion of trial owing to frequent adjournments sought by the Advocates, said practice should be discouraged and professional pre-occupation of a counsel is not always a sufficient ground for adjournment.
7. However, it is equally important and well-settled proposition of law that the accused cannot be penalized for the absence of his Advocate for any reason. The order itself speaks that the accused/applicant had made an oral request to the trial Magistrate seeking an adjournment but the same was declined.
8. That according to provisions contained in section 540, Cr.P.C. The Court has wide powers to recall/re-examine the witnesses. This question was also considered in the case of State v. Abdul Hamid and another reported in 1970 PCr.LJ 384, the relevant portion whereof is reproduced hereunder:-- "A bare reading of this section would show that it has been expressed in the widest possible terms and does not limit the discretion of the Court in any manner whatsoever. The discretionary power in this section can be invoked at any stage of enquiry or trial and any witness can be examined or a witness already examined can be recalled for further examination, if his evidence appeared to be essential to the just decision of the case."
9. The cross-examination has been held to be the "great legal engine" ever invented for the discovery of truth. The opportunity to cross-examine a witness contemplated by the law must be real, fair and reasonable. It is not an empty formality but a valuable right and best method for ascertaining forensic truth. The applicant, who is not a trained person in legal procedure, was not expected to cross-examine the prosecution witnesses in absence of his Advocate. For reference see PLD 1992 Karachi 91 (Altaf Hussain Shamim v. State) and 1997 M LD 1358 (Nusrat v. The- State).
10. Though the accused/applicant did not cross-examine the P.Ws. In this case, yet cross- examination by accused himself is not substitute of cross--examination by the counsel. This view finds support from the authority reported in 1993 SCM R 550 (Syed Saeed Muhammad Shah and another v. The State).
11. No doubt, the importance of expeditious disposal cannot be undermined, yet there is a perceptible difference between the speed and C haste, and a balance is to be struck between the two well-known maxims that "justice delayed is justice denied", and 'justice hurried is justice buried".
12. It is now well-settled principle of law that the provisions contained in section 561-A, Cr.P.C. Are meant to secure the ends of justice and the High Court is competent to invoke the powers under section 561-A, Cr.P.C. In the appropriate cases in order to advance the cause of justice.
13. Be that as it may, since the prosecution witnesses are police officials and as such the procurement of their attendance in the trial Court will not be very difficult.
14. For the -reasons mentioned above, I allow the application under section 561-A, Cr.P.C. And direct the trial Court to recall the prosecution witnesses and afford opportunity of cross-examination to the accused/applicant to the accused/applicant. However, it must be made clear that the learned defence counsel will ensure his presence in the Court without fail when the witnesses are called for cross-examination and in case of his failure, the accused will have to make alternate arrangement so that the matter is not delayed any more.
A copy of this order be sent to the Sessions Judge (South) Karachi.