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Criminal Appeal No. 11 of 1985, beard on 2nd April, 1986.

‑‑‑S. 22‑‑Accused not given opportunity by trial Court to cross‑examine six important prosecution witnesses on ground that defence counsel did not turn up though he was waited for sometime‑‑Absence of defence counsel, held, would not mean that accused was to be denied right of cross‑examination‑‑Accused has a statutory right to cross‑examine a witness‑‑Conviction of accused set aside, case remanded to Trial Court for cross‑examination of witnesses who were not cross‑examined by accused.‑‑[Cross‑examination].

--‑‑‑S. 22‑‑Trial Court after waiting defence counsel for sometime denying right of cross‑examination of witnesses to accused‑‑Case remanded with a warning to Advocates that it was the duty of an Advocate that he should‑ make adjustment about his appearance especially in cases where his presence was indispensable‑‑Presiding Officer and. Advocates, must be considerate to each other in discharge of their duties.‑‑[Advocate‑ Cross‑examination].

-‑‑‑S. 497 ‑‑Emigration Ordinance (XVIII of 1979), S. 22‑‑Conviction set aside and case remanded to Trial Court‑‑Accused behind bars since about 16 months‑‑Accused granted bail in interest of justice.

Mushtaq Raj for Appellant.

S.D Qureshi assisted by N.M. Tahir for the State.

Date of hearing: 2nd April, 1986.

Secret information was laid before Ch. Fazal Hussain, Inspector F.I.A. Passport Cell, Lahore, that one Abdul Ghani son of Sardar Muhammad resident of Mughal Chak Kalan, Police Station Qila Didar Singh, Tehsil and District Gujranwala was receiving large sum of money from different persons on the pretext of sending them to Saudi Arabia. Accordingly a raid was organised. It was conducted by Ch. Fazal Hussain, Inspector F.I.A. Twenty‑three passports, cash of Rs.56.367 and some other documents were recovered from the house of Abdul Ghani. He was accordingly challaned under section 17/22 of the Emigration Ordinance, 1979, read with section 6 of the Passport Act. The Special Judge who tried him convicted him under section 22 of the Emigration Ordinance, 1979, and sentenced to six years' R.I. by judgment, dated 23‑12‑1984.

The convict appealed to this Court. He also prayed that pending the decision of appeal he be enlarged on bail. This request was turned down by me because I ordered that the appeal be set down for final hearing.

Learned counsel for the appellant took me through the relevant record and contended that the petitioner was innocent. He was in Saudi Arabia when the alleged money was collected. Somebody else must have done that. It was next submitted that two important witnesses of the prosecution who signed recovery memos, Muhammad Ramzan Lambardar and Soofi Siraj Din were inimical to the appellant and were friends of the police. Factum of recovery was also denied by the learned counsel.

Last of all learned counsel submitted that the petitioner was not given an opportunity to cross‑examine some important witnesses.

I have also heard learned counsel for the State as well as for the complainant. I think this appeal must succeed on short nevertheless important legal ground that the petitioner was not given the opportunity to cross‑examine some of the prosecution witnesses.

In all prosecution examined seven witnesses from whom money was alleged to have been taken by toe petitioner on the promise that they would be sent abroad. The appellant was not given any opportunity to cross‑examine six witnesses out of them.

I find a note by the learned trial Judge at the end of the examination‑in‑chief of Muhammad Anwar (P.W. 4), which is to the following effect:‑-

"(Accused requests to wait for his counsel. Already waited for one hour. It is not possible to wait further for him.) Nil."

The trial Judge has also given the following note after the examination -in‑chief of Ch. Fazal Hussain, D.S.P. (P.W. 10):‑--

"(Accused requested to wait for his learned counsel. The case 'was kept pending for this purpose. Waited for one hour. He has not turned up. The accused has declined to cross‑examine.)"

I do not think the trial Judge while doing so acted in accordance with slaw. If the counsel did not turn up that did not mean that the petitioner was to be denied the right to cross‑examine. It is a statutory right of the accused to cross‑examine a witness. The learned Special Judge should have adjourned the case to some other date.

I would like to add a note of warning to the Advocates lest they think that I have laid down the law that when an Advocate is not present, the case must be adjourned. It is the duty of an Advocate that he should in advance make necessary adjustment about his appearance especially in those cases where his presence is indispensable.

In important cases, an Advocate must have a junior with him, who can look after the interest of the litigant in the absence of the C senior counsel.

The Presiding Officer and the Advocate must be considerate to each other in the discharge of their respective duties. If either of them is arrogant, adamant or unreasonable, then the person to suffer from such an attitude is the one on trial. This situation must be avoided at all costs.

I called upon the counsel for the State and the complainant as to what was their reply to the aforesaid objection. They could not advance any affective argument. As a matter of fact they had nothing to urge.

I am, therefore, of the view that this case will have to be sent back to the Special Judge, who shall summon those witnesses, who were not cross‑examined by the appellant and to give a reasonable opportunity to the appellant to cross‑examine them.

The appellant was convicted on 23‑12‑1984. Since then he is behind the bars. As I have remanded the case, it is not in the interest of justice to keep the appellant behind the bars.

I, therefore, admit him to bail in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Special Judge (Central), Lahore.

Before concluding, I would like to observe that in case the trial Court find that the appellant is purposely trying to prolong the trial or absents himself, it would be open to the trial Court to cancel his bail and send him to judicial lock‑up.

The appeal is disposed of accordingly.

H.A.K. Case remanded.

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