Form No:HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT

Case No: Crl. Misc. No.999-M/2015

Asghar Ali VS The State & another.

S.No. of Date of Order with signature of Judge, and that of parties or counsel,
order/ order/ where necessary
Proceeding Proceeding

16.10.2015 Mr. Tariq Zulfiqar Ahmad Ch. Advocate for petitioner.

The petitioner is facing trial before a learned

Magistrate at Sahiwal in a case registered vide FIR No.149
way back on 5-12-2014 at Police Station Harrapa; he is
accused of issuance of a cheque, in fulfillment of some
financial obligation, bounced on presentation. Report under
Section 173 of the Code of Criminal Procedure, 1898 was
submitted as far back as on 25-9-2012, pursuant whereto, he
was indicted on 14-2-2013 whereafter the case could not
proceed for one reason or another; there are adjournments to
the discredit of the complainant as well, however, the learned
trial Magistrate finally succeeded in recording statements of
PW-1 and PW-2 on 17-7-2014; the cross-examination was
deferred on the request of the defence. On 9-9-2014 the
witnesses were in attendance, however, due to non-availability
of learned defence counsel, the case was adjourned to
13-9-2014 with last opportunity to the petitioner to arrange
cross-examination; on 13-9-2014, the witnesses were again in
attendance but the petitioner solicited original record before
cross-examination, the next date was 15-10-2014 when the
Crl. Misc. No.999-M/2015 2

case could not proceed owing to transfer of the learned

Presiding Officer; on 13-11-2014 again the case was adjourned
as inquiry report was sent for; this went on till 30-7-2015 when
the witnesses already examined in chief accompanying the
third witness were in attendance, however, cross-examination
was once again deferred due to non-availability of the learned
defence counsel, the petitioner was once again cautioned with
a last opportunity to arrange his representation; the case was
posted for hearing on 19-9-2015 when the petitioner defaulted
in his appearance, lawyers were also on strike and petitioner
was sent for through non-bailable warrants for 30-9-2015 when
once again despite availability of witnesses, the petitioner
failed to arrange cross-examination through his counsel and his
right for cross-examination was forfeited vide order dated 30-
9-2015, vires whereof, were challenged through a revision
petition which met with no better fate before a learned Addl.
Sessions Judge at Sahiwal, who upheld forfeiture vide order
dated 10-10-2015.

2. Learned counsel for the petitioner contends that

the right of cross-examination being a most important right
cannot be forfeited without first exposing an accused to a
certain conviction and as such the request merits to be visited
with leniency; that an overall analysis of interim orders reveals
that the prosecution itself is a contributory towards the lapse in
no less degree and that on 19-9-2015, the lawyers were on
strike and as such it was not possible for the petitioner to
arrange cross-examination; the bottom-line of the learned
counsel is that the impugned forfeiture of right of cross-
examination is liable to be struck down in exercise of inherent
powers by this Court under Section 561-A of the Code of
Criminal Procedure, 1898.
Crl. Misc. No.999-M/2015 3

3. There is no cavil with the fact that right of cross-

examination is a most valuable right which enables an accused
confronting a criminal charge to vindicate his position. No
statement except a dying declaration, can be read in evidence
to the detriment of a person, likely to be adversely effected by
such statement, unless cross-examined. Right of hearing and
right of cross-examination are equally important to ensure a
fair trial, nonetheless, accused is to be afforded a meaningful
and reasonable opportunity to canvass his point of view as well
as impeach credibility of the witnesses appearing against him
through cross-examination, however, it does not mean, by any
stretch of imagination that accused would avail these
opportunities according to his whims and choice or that he can
hold in abeyance the process of law to a point of time of his
selection. In a criminal trial, before his indictment and
recording of evidence pursuant thereto, an accused is provided
copies of statements of witnesses and allied material, much in
advance, so as to enable him to know the nature of accusation
and evidence in support thereof. The legislature in its wisdom
has provided a period no less or no later than seven days. No
doubt, for a valid cause, this period can be extended but
certainly within reasonable limits. Another aspect of delay in
recording of evidence or cross-examination of the witness is
the hardship suffered by a witness, a structural component of
system of administration of justice, second to none in
importance. The system of administration of justice is evidence
based and as such dependent upon witnesses. Incessant
adjournments and importunate cross-examinations are the
factors behind social apathy towards civic responsibility to
become a witness in aid of justice despite a divine command.
Entry into a witness-box is nothing less than stepping into a
Crl. Misc. No.999-M/2015 4

quagmire. This uncharitable treatment of witnesses at the hand

hands of the unscrupulous must be discouraged with full force.

4. Reference to lawyers strike is also beside the

mark. Contention of a plaintiff on the strength of lawyers
strike did not find favour in the case of Ch. Shamsher Ali Vs.
Khalid Mehmood (2015 YLR 47). Call of strike by the
members of the Bar cannot be taken as a cover for failure to
cross-examine a witness, who is in attendance. Every
professional pursuit and calling is subservient to law and so is
the legal practice. A counsel is bound to appear in the Court
when a matter is called so as to represent his paymaster and in
the event of default, the Court may proceed with the case
regardless of the consequences befalling upon the
unrepresented client, who may sue the counsel for any injury
or loss on account of failure to provide him legal assistance. It
has been held in the case of B.L. Wadehra AIR 2000 Dehli
266 “prolonged strike by the lawyers has caused injustice to
the public and the litigant and has also interfered with the
administration of justice”. This issue also came under the
consideration of Supreme Court of India in the case of
Ex-Capt. Harish Uppal v. Union of India , relevant portion is
advantageously reproduced below:-

“Every Court has a solemn duty to proceed with

the judicial business during Court hours and the
Court is not obliged to adjourn a case because
of a strike call. The Court is under an obligation
to hear and decide cases before it and it cannot
shirk that obligation on the ground that the
advocates are on strike. If the counsel or/and the
party does not appear, the necessary
consequences contemplated in law should
follow. The Court should not become privy to
the strike by adjourning the case on the ground
that lawyers are on strike. Even in the common
Cause case the Supreme Court had asked the
Crl. Misc. No.999-M/2015 5

members of the legal profession to be alive to

the possibility of Judges refusing adjournments
merely on the ground of there being a strike call
and insisting on proceeding with the cases.
Strike infringes the litigant’s fundamental right
for speedy trial and the Court cannot remain a
mute spectator or throw up its hands in the
helplessness on the face of such continued
violation of the fundamental right.”

For the above reasons, the petitioner cannot press into service
lawyers strike on 19-9-2015 to indemnify his absence or
failure to arrange representation on the witnesses, who were in
attendance.

5. Contention that prosecution is equally responsible

for the delay, as some of the adjournments are to its discredit,
hardly advance petitioner’s case for the reason that after
recording of examination of chief of the witnesses, delay in
cross-examination is not to be determined on the basis of
arithmetic quantification and instead it is to be evaluated on
attitudinal paradigm and that reflects a persistent pattern on
part of the petitioner to avoid conclusion of the trial. Powers
under Section 561-A of the Code of Criminal Procedure, 1898
are to prevent abuse of process of law and in aid of justice;
these cannot be invoked to validate wrongs. For the above
reasons, this petition is dismissed in limine.

(Qazi Muhammad Amin Ahmed)

JUDGE
Approved of Reporting
Azmat