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Criminal Revision No. 34 of 1985/BWP, decided on 18th March, 1985

---‑‑S. 439/540‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)/11‑‑Recalling of prosecution witnesses Counsel at State expense appointed‑‑Witnesses cross‑examined by such counsel‑ Counsel not seeking instructions from accused before cross‑examining witnesses‑‑Counsel at State expense, held, could not be appointed in case not punishable with death and safe administration of justice witnesses should be re‑called for further cross‑examination by counsel engaged by accused‑‑Order of Sessions Judge set aside in circumstances.

Sardar Ahmad Khan for Petitioner.

Muhammad Fahim Riaz for the State.

Date of hearing: 18th March, 1985.

The facts giving rise to this Criminal Revision are that a case under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Muhammad Anwar petitioner. The challan was sent up to the learned Sessions Judge, Rahimyar Khan who framed charge under section 11/10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against the petitioner. The petitioner was un represented. On his request, the learned Sessions Judge, engaged Mr. Murtaza Bhatti as counsel for the accused at State expense.

2. The prosecution produced seven witnesses who were cross‑examined by Mr. Ghulam Murtaza Bhatti, Advocate. In the meantime, the petitioner/ accused engaged private counsel who on 27‑1‑1985 moved application for re‑calling all the seven witnesses examined by that time for further cross‑examination. The application was dismissed by the learned Sessions Judge on 19‑2‑1985, hence this revision.

3. The learned counsel for the petitioner has raised following points:‑

(1) That since the charge against the petitioner was not punishable with death Mr. Ghulam Murtaza Bhatti, Advocate could not have been arranged as counsel for the petitioner et State expense.

(2) That Ghulam Murtaza Bhatti, Advocate had cross‑examined the witnesses without seeking instructions from the petitioner/ accused.

4. Learned counsel for the State has supported the order of the learned Sessions Judge.

5. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that since there are no provisions for the appointment of counsel for accused at State expense, in the interest of justice, in case other than the cases punishable with death and that since the offences with which the petitioner was charged were not punishable with death, therefore, Dr. Ghulam Murtaza Bhatti, Advocate could not have been appointed as counsel at State expense. Since there are allegations that Mr. Ghulam Murtaza Advocate had not sought instructions from the accused before cross‑examining the witnesses, I am of the view that it would be in accordance with safe administration of justice that the witnesses are called for cross‑examination by the private counsel engaged by the petitioner/ accused.

6. For what has been stated above, the order of learned Sessions Judge, dated 19‑2‑1985 is set aside and the application moved by the petitioner for re‑calling the witnesses already examined for further cross‑examination, is allowed.

S.A. Revision accepted.

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