ALI HASSAN vs State Ss — 2024 PLD 424 KARACHI-HIGH-COURT-SINDH

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ALI HASSAN VS State Ss. 302(b), 427 & 504---Qanun-e-Shahadat (10 of 1984), Art. 161---Constitution of Pakistan, Art. 10-A---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, intentional insult with intent to provoke breach of peace---State counsel---Cross-examination not conducted by State Counsel---Trial Judge cross-examining witnesses on behalf of accused---Legality---Accused was charged for committing murder of the deceased by causing sharp sided hatchet blows---Record showed that counsel for the accused was appointed on State expense, however said counsel was given opportunity to cross-examine the witnesses but he did not cross-examine the witnesses---Usually the Trial Court ought to have called the next witness as it was the decision of the counsel for the accused whether or not he wanted to cross-examine the witness---However, the Court took the unusual step of cross-examining the witness in detail on behalf of defence---Such practice was repeated in respect of first three witnesses, who prima facie were the most important witnesses in the case i.e. complainant and eye-witnesses---Admittedly, the Court had the power under Art. 161 Qanun-e-Shahadat, 1984, to put questions to a witness which were usually covered in the evidence of the question being reproduced followed by the answer being reproduced in the evidence---Such approach of the Trial Court cross-examining the witness in detail on the failure of the defence counsel to do so did not appear to be legal as the Trial Court was meant to be a neutral, independent arbitrator of the proceedings and was not meant to be perceived to be favouring one side or the other---Such conduct of the trial judge was not permissible under the law---Trial judge ought to have either given the counsel for accused time to cross-examine the important witnesses on the next date of hearing or he should have changed him with another more experienced counsel, who could have carried out the cross examination if the trial judge deemed it absolutely necessary to ensure that the interests of the accused were protected---Counsel appointed for the accused was not entirely incapable of proceeding with the case as he then proceeded to cross-examine the remaining (four) prosecution witnesses---Trial Court Judge while appointing counsel on State expense or pauper counsel for the accused in capital cases must ensure that the counsel appointed for the accused are experienced and seasoned defence counsel in capital cases so that the rights of the accused to a fair trial under Art. 10-A of the Constitution could be adequately protected at the time of trial as per law and Constitution---If the Judge thought that the Court appointed defence counsel was failing in his duty to adequately defend the accused and the accused was being prejudiced he might have considered changing the pauper counsel rather than cross-examining the witness himself which tended to erode his impartiality---Impugned judgment was set aside and matter was sent back to the Trial Court for the limited purpose of re-recording the evidence of three witnesses in the presence of defence counsel, who would be well-experienced and competent in dealing with capital cases.

ALI HASSAN vs State Ss — 2024 PLD 424 KARACHI-HIGH-COURT-SINDH

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