PLD 2023 Lahore 300
The credibility and truthfulness of a witness is assessed from his answers to the questions put to him during the crossexamination. This right is based upon the principle of natural justice that no one should be condemned unheard commonly known as ‘audi alteram partem’ and in the criminal trials, accused is heard through the cross examination of prosecution witnesses. Principle of natural justice requires that if court is going to place any reliance on evidence against a person then such evidence should be placed before such person for her/his information, comment and criticism. Whenever court is going to rely upon statement of a witness against the accused, he should be provided an opportunity to challenge the credibility and truthfulness of such witness and if he is denied this opportunity, it will amount to condemn him unheard.
Right of cross examination is a statutory right recognized and provided under Article 133, Qanun-e-Shahadat,1984. In a criminal case, it is obligatory upon the court to fulfil this statutory requirement in its true spirit. Right to fair trial, which is now enshrined in constitution in our country under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (‘the Constitution’), includes right of an accused to confront his accuser.
In a fair and transparent criminal justice system, the right to confrontation is the hallmark fair trial protection. Right to confrontation is considered an integral element of right to fair trial.
Right to confront one’s accuser is integral component of right to fair trial as guaranteed under Article 10-A of the Constitution and provided under Article 133 of Qanoon Shahadat, 1984. Right to cross-examine a witness produced by the adversary cannot be struck off as it would amount to violation of right to fair trial. No provision could be pointed out by the learned Prosecutor General, Punjab appearing on behalf of state in Code of criminal procedure, 1898 or any other law governing the criminal trial, which empowers the trial court to close the right of an accused to confront his accuser. A right provided under the statute cannot be abridged or taken away without an explicit provision of law, which in the present case is not available on statute books. A right provided under the law, in absence of provision to contrary, cannot be impliedly taken away. Even otherwise, after declaring that right to confront one’s accuser is part of right to fair trial ensured under Article 10-A of the Constitution, had there been any provision to abridge such right, it would have been ultra vires being in conflict with constitution.
It is the duty of a court of law to make every effort to reach at a just conclusion and cross examination by a trained and experienced counsel is the only way to assess the evidentiary value and credibility of a witness. In the absence of cross examination, it would be very difficult for the learned trial court to sift the truth from the statement of a witness.
It is also observed that every so often presiding officers do cross examine the witnesses on behalf of an unrepresented accused but I am unable to agree with such kind of practice too. The role of presiding officer is to adjudge the case of both the parties and to reach at a just conclusion after hearing them. By cross-examining on behalf of an unrepresented accused, court would lose her/his impartial role because while cross examining the prosecution witnesses, court would effort to shake the credibility of witnesses and by doing so, impartiality of court would be compromised. Though Article 161 of Qanun-e-Shahadat, 1984 empowers a court to put questions to the witnesses but said power should be used sparingly in exceptional cases, that too, to seek explanation of any fact narrated by the witness in his statement, whether in examination-in-chief or in crossexamination. This argument is supplemented by Rule 2 of Chapter 1E, High Court Rules and Order Volume III, wherein it is provided that this power should be used judiciously to elucidate the facts left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible.
Despite what has been discussed above the accused cannot be allowed to hijack the trial proceedings in garb of safeguarding the right to fair trial. Accused at times attempts to linger on the trial proceedings with nefarious designs to temper with the prosecution evidence or avoid his expected conviction and penal consequences, which should not be permitted by the trial court. Trial court in the present case was not helpless to proceed further without violating the right to fair trial, especially right to confront one’s accuser. Under Rule 1, Part C, Volume 3, Chapter 24 of the High Court Rules and Orders, if an accused is unrepresented in a Sessions case and he cannot afford to engage a counsel, the Sessions Judge/Additional Sessions Judge is bound to make arrangement to employ a counsel at government expense for the said accused.
Keeping in view the literal meaning of term ‘unrepresented’ as used in Rule 1, Part C, Volume 3, Chapter 24 of the High Court Rules and Orders this court has no hesitation to hold that an accused, who although has arranged a counsel, who also files his power of attorney on his behalf, shall deem to be ‘unrepresented’ if his counsel does not appear before the court and unnecessary delay is caused in early conclusion of trial as occurred in this case.
As far as question that accused is entitled to have the counsel of his choice as provided under Article 10 of the Constitution and therefore counsel on state expense shall be violative of that Article is concerned, it is no doubt a constitutional right to have counsel of choice but such right is subject to the condition that accused should engage such counsel on his own.
Court should appoint a counsel who is well versed, experienced and competent to represent an accused as matter pertains to life and liberty of an accused and it cannot be handed over to an inexperienced and untrained counsel. Appointment of counsel who is not capable and experienced to conduct criminal trial shall be violative of Articles 4, 9, 10 and 10-A of the Constitution. Accused cannot claim to be represented by a specific counsel of his choice when counsel to represent him is appointed on state expense.
Whenever a trial court is confronted with such a situation, there will be two options available to such court, first is to adjourn the case for a future date or if learned trial court does not seem it appropriate to adjourn the case then to provide a capable and skilled counsel to the accused on state expenses to carry out cross examination on prosecution witnesses or court witnesses, if any.
It is also pertinent to mention that learned trial court should keep in mind that provision of a defense counsel on state expense should not be taken as a mere formality by providing to an unrepresented accused a counsel who is not qualified, experienced and competent enough to conduct criminal trial, otherwise, the very object of providing a counsel shall be defeated. Trial court should ensure, while appointing defense counsel, that accused is not underrepresented. An underrepresented accused is an accused who has been provided with insufficient or inadequate representation. Right to fair trial demands not only representation but representation through an experienced, competent and trained advocate.
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