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Criminal Revision No. 34 of 1962, decided on 25th September 1962.

‑Cross‑exami nation‑Failure to afford full opportunity to accused‑Proceedings illegal and invalid‑Criminal Procedure Code (V of 1898), S. 110.

Ranjah v. The State P L D 1962 B J 12 rel.

Azizullah Sheikh for Applicant.

Imam Bux Sheikh for Respondent.

Date of hearing: 25th September 1962.

The applicant Hakeem, son of Umar was arrested from his house by the police at 5 a.m. on 4‑11‑1960 and was produced alongwith nine others before the S. D. M., Thatta encamped at Pir Patho to face proceedings under section 110, Cr. P. C. An order under section 112, Cr. P. C. was read out by the learned S. D. M. to which the applicant pleaded not guilty and prayed for time to engage an Advocate and to file a written statement. But, this request of his was turned down and the S. D. M. straightaway proceeded to record the statements of 12 prosecution witnesses whose attendance at the place of trial was procured in advance by the police. By about 12 noon that day an Advocate on behalf of the applicant arrived at Pir Patho from Thatta and was in time to cross‑examine only the two last prosecution witnesses in a haphazard manner and without having obtained any instructions from the applicant. Thereafter that same day an application under section 117 (3) Cr. P. C: was submitted by the prosecution and the learned Magistrate ordered the applicant to execute a bond for good behaviour in the sum of Rs. 10,000 for a period of 12 months with respectable sureties residing within a radius of 5 miles of the applicant's residence, paying income‑tax or land revenue of not less than Rs. 1,000 per annum and being in a position to exercise control over the applicant. No time was given to the applicant to produce such sureties with the result that he was remanded the same day to jail.

2. A Revision Application being Criminal Revision Appli cation . No. 475/1960 against this order under section 112, Cr. P. C. was filed in this High Court which was disposed of by Abdul Hamid, J., on 16‑1‑1961. His Lordship holding the conditions imposed in the order under section 112, Cr. P. C. to be onerous modified them by reducing the amount of the surety bond to Rs. 5,000 with two sureties in the sum of Rs. 2,500 each and declaring that the said sureties should come from a class of persons owning lands. The case was then sent back to the Court of the S. D. M. for further inquiry and an application on behalf of the applicant and his co‑accused was then presented to the learned S. D. M. Thatta praying that‑

"this Hon'ble Court would be pleased to recall all the prosecution witnesses examined so far the purpose of further cross‑examination in as much as the enquiry under section 110, Cr. P. C. is to be conducted in accordance with the procedure laid down for trials of various cases under Criminal Procedure Code. Such cross‑examination is all the more necessary because prosecution witnesses could not be cross‑examined for want of proper legal engagement."

On this application the learned S. D. M. on 3‑3‑1961, passed an order as under

"Heard both parties on the matter. Application appears to be vexatious and for the purpose of delaying the proceedings. It is, therefore, dismissed.

The S. D. M. then proceeded with the matter and on 31‑5‑1961 passed an order under section 118, Cr. P. C. calling upon the applicant and his co‑accused to enter into a bond in the sum of Rs. 5,000 with two sureties each in the sum of Rs. 2,500 who should come from a class of persons owning lands or in default to undergo rigorous imprisonment for 12 months. An appeal against this order was preferred in the Court of the District Magistrate, Thatta, who on 27‑12‑1961 dismissed this appeal. Hence, the present revision application.

3. Mr. Azizullah Sheikh, Barrister‑at‑Law, appearing on behalf of the applicant has urged only one main point before me and that is that his client was given no reasonable opportunity of cross‑examining the prosecution witnesses. Mr. Azizullah contends that for want of such cross‑examination the evidence against his client has gone unchallenged and, therefore, it is no evidence in law. In support of this contention he relied upon a ruling reported in Ranjah v. The State (P L D 1962 B J 12).

4. Before dealing with this argument of the learned counsel appearing on behalf of the applicant it is necessary to point out that inasmuch as the period for which the applicant was called upon to execute a surety bond is now well over, this application assumes an academic importance. Mr. Azizullah was aware of this fact and when bringing it to my notice he added that if the order made against his client by the two Courts below is an illegal order there is no reason why it should continue to stand on the record and thereby create a blemish upon the personal record of his client. From this point of view, therefore, the present revision application is not of mere academic importance.

5. Now considering the argument urged by the learned counsel appearing on behalf the applicant I find there can be no disputing the fact that the prosecution evidence recorded against his client went almost unchallenged. On the day his client was arrested and produced before the S. D. M. he asked for time within which to engage an Advocate and to file a written statement: but this request of his was refused. Ten out of the twelve prosecution witnesses were examined and not cross- examined at all by the applicant. It was only the remaining two last prosecution witnesses to whom a few questions were put at random by the Advocate whom the applicant's people were able to fetch for him from Thatta. Besides, after the R & P in this case had returned to the S. D. M. from this High Court in early 1961 an application was made to the trial Magistrate for recalling the prosecution witnesses for the, purpose of cross -examination. It was stressed in this application that such cross -examination was all the more necessary because earlier there had been no opportunity for effectively cross‑examining them. As mentioned above, this application was rejected and the case proceeded to the final order under section 118, Cr. P. C. which was passed by the Magistrate against the applicant and his co-accused on 31‑5‑1961.

6. The right of cross‑examination has from time immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose o f testing the veracity of the statement made by a witness in his examination‑in‑chief. In the case quoted by the learned counsel appearing on behalf of the applicant and referred to above Sajjad hmad, J., has used these words :‑

A statement of a witness under the Evidence Act is not effective and complete unless it is subjected to cross‑examination by the opposite‑party or unless the opposite‑party had an opportunity to do so and which it has declined or not availed of. The right of cross‑examination is of particular importance for accused persons in criminal trials involving their life and liberty depending on the verbal statements of the witnesses deposing against them."

It, therefore, seems to me that the failure on the part of the S. D. M. in this case to allow the applicant's counsel an opportunity of fully cross‑examining the prosecution witnesses prejudicially affects the proceedings in this matter to such an extent as to render such proceedings illegal and invalid. Mr. Imam Baksh Sheikh appearing on behalf of the State conceded that the S. D. M. should have allowed the applicant a chance of cross- examining the prosecution witnesses and that his failure to do so has vitiated the order passed by him.

7. In these circumstances, therefore, I would allow this revision application and set aside the judgments of the two Courts below.

K. B. A.

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