Friday, 19 February 2016

Fundamental Right of Accused is Fair Trial

PLJ 2013 Cr.C. (Lahore) 461
[Multan Bench Multan]
Present: Muhammad Qasim Khan & Ibad-ur-Rehman Lodhi, JJ.
MUHAMMAD ABDULLAH TARIQ--Petitioner
versus
STATE and another--Respondents
Crl. Rev. No. 306 of 2010, decided on 13.12.2012.
Constitution of Pakistan, 1973--
----Art. 10(1)--Fundamental right--No person, who is arrested or detained, shall be denied the right to consult and be defended by a legal practitioner of his choice. By means of Constitution (Eighteenth Amendment) Act, 2010, Article 10A has been inserted in the Constitution, which provided that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.          [P. 463] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 340(1)--Right of accused--Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, has a right to be defended by a pleader.          [P. 463] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 439/435 & 540--Revision petition against the order of Addl. Sessions Judge, in which trial Court appointed defence counsel on state expenses and dismissed the application of petitioner for re-summoning of PWs for impugned order and gave opportunity to cross-examine over PWs--Right of accused--Last opportunity to petitioner to conduct the cross-examination--Conduct adopted by the trial Court in appointing the defence counsel on State expenses in a haste and then in refusal to re-summon the prosecution witnesses for their cross-examination by the counsel, are acts, which are not only violative to the provisions of the Constitution, but also the settled legal norms--The petitioner will appear before; the trial Court and if the Special Court is still being headed by the Judge, who has passed the impugned orders then, he will not take further proceedings in the trial and the matter will be reported back to High Court, for some appropriate direction with regard to conduct of trial by some other competent Court, and if the Special Court is now being headed by some other Judge, then he will proceed with the matter and re-summon the said witnesses for a date according to the Court's own schedule and this will be considered as a last opportunity to the petitioner to conduct the cross-examination on the said prosecution witnesses--Revision petition allowed.       [P. 464] E & F
Right of accused--
----Counsel of his own choice--Concept of fair trial includes the right of an accused person to be defended by a counsel of his own choice, if he can afford one. Since right of counsel has been recognized, so its alleged violation becomes a justifiable issue over which the Court can exercise judicial review--When accused has engaged a counsel of his own choice, the concept of fair trial necessarily included the right of an accused person to be defended by such: particular counsel. Basic principle is that justice should not only be done but manifestly be seen to have been done and where on account of any attending circumstances, a suspicion or distrust had occurred resulting in a loss of confidence in the administration of justice, which was essential to social order and security, it is always better that it should be done by a Court, whose impartiality could not be doubted and was above suspicion. When this is an established right of an accused to be defended by counsel of his own choice, the Court cannot impose an Advocate upon the accused. [Pp. 463 & 464] C & D
Nemo for Petitioner.
Mr. M.A. Hayat Haraj, Special Prosecutor for ANF.
Date of hearing: 13.12.2012.
Order
The petitioner is facing trial in Narcotics Case No. 09/N of 2008, in the Court of learned Special Judge Anti-Narcotics Force, Multan, where charge was framed on 12.03.2008 to which the petitioner did not plead guilty and, therefore, the matter was put to trial.
2.  On 26.05.2010, two PWs i.e. Zahoor Ahmad, a Constable/recovery witness and Farooq Ahmad Sheikh, Investigating Officer, were present for making their statements before the Court, but the learned trial Court was informed that the learned counsel representing the accused-petitioner was busy in his professional engagements in some murder case in another Court. The request for adjournment as was made on account of non-availability of the learned counsel for the petitioner-accused, was turned down and Chaudhary Muhammad Akbar, Advocate was appointed as a defence counsel on State expenses and such newly appointed defence counsel straightaway cross-examined the said two witnesses.
3.  On 07.06.2010, a petition under the provisions of Section 540 of Cr.P.C. was moved praying the re-summoning of PW.3 and PW.4, whose statements were recorded on 26.05.2010, and who were cross-examined by the defence counsel appointed by the learned trial Court on State expenses.
4.  The learned trial Court vide order dated 16.06.2010 has proceeded to dismiss the said application by holding that the petitioner was provided a counsel on State expenses, who cross-examined the PWs and, thus, there was no justification left with the accused-petitioner to ask for re-summoning of the PWs and cross-examination by the counsel of his own choice
5.  It is a fundamental right as guaranteed under Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, which mandates that no person, who is arrested or detained, shall be denied the right to consult and be defended by a legal practitioner of his choice. By means of Constitution (Eighteenth Amendment) Act, 2010, Article 10-A has been inserted in the Constitution, which provided that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and clue process.
6.  In view of Section 340(1) of the Criminal Procedure Code, 1898, any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, has a right to be defended by a pleader.
7.  Concept of fair trial includes the right of an accused person to be defended by a counsel of his own choice, if he can afford one. Since right of counsel has been recognized, so its alleged violation becomes a justifiable issue over which the Court can exercise judicial review.
8.  In the present case, the learned trial Court proceeded to record the statements of two important witnesses without waiting for the learned counsel of the choice of the petitioner-accused and further refused to recall the prosecution witnesses already examined without proper representation on behalf of the accused petitioner.
9.  When accused has engaged a counsel of his own choice, the concept of fair trial necessarily included the right of an accused person to be defended by such particular counsel. Basic principle is that justice should not only be done but manifestly be seen to have been done and where on account of any attending circumstances, a suspicion or distrust had occurred resulting in a loss of confidence in the administration of justice, which was essential to social order and security, it is always better that it should be done by a Court, whose impartiality could not be doubted and was above suspicion. When this is an established right of an accused to be defended by counsel of his own choice, the Court cannot impose an Advocate upon the accused.
10.  We have noted that on 26.05.2010, Chaudhary Muhammad Akbar, Advocate was appointed on State expenses to defend the accused-petitioner and on the same day, the said learned counsel cross-examined two prosecution witnesses; one a recovery witnesses and other one is the Investigating Officer of the case, without there being any consultation with the accused, and also without going through the record of the case. One can imagine that what sort of cross-examination was conducted by the said learned counsel, having no knowledge with the facts of the case.
11.  The conduct adopted by the learned trial Court in appointing the defence counsel on Stale expenses in a haste and then in refusal to re-summon the prosecution witnesses for their cross-examination by the learned counsel, are acts, which are not only violative to the provisions of the Constitution, but also the settled legal norms.
12.  In such view of the matter, this petition is allowed; the impugned orders dated 26.05.2010 and 16.06.2010, are set-aside, and the application filed by the petitioner under Section 540 of Cr.P.C. stand accepted with a direction to the learned Special Judge Anti Narcotics Force, Multan to re-summon the prosecution witnesses viz. PW.3 and PW.4 for the purposes of their cross-examination by the learned defence counsel appointed by the petitioner-accused to defend himself in the trial.
13.  The petitioner will appear before; the learned trial Court on 19.12.2012 and if the Special Court is still being headed by Mr. Muhammad Ashraf Gull, the learned Judge, who has passed the impugned orders then, he will not take further proceedings in the trial and the matter will be reported back to this Court, for some appropriate direction with regard to conduct of trial by some other competent Court, and  if  the  Special  Court  is  now  being  headed  by some other learned Judge, then he will proceed with the matter and re-summon the said witnesses for a date according to the Court's own schedule and this will be considered as a last opportunity to the petitioner to conduct the cross-examination on the said prosecution witnesses.
14.  Keeping in view the pendency of this trial and also the fact that the announcement of final judgment was stopped by this Court in the present Criminal Revision on 29.6.2010, it is directed that the trial of the case be expeditiously taken up and concluded within next three months from today under intimation to this Court through the Deputy Registrar (Judicial).
(A.S.)   Revision allowed

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