IN CRIMINAL TRIAL, RIGHT OF CROSS EXAMINATION (BY

IN CRIMINAL TRIAL, RIGHT OF CROSS EXAMINATION (BY THE ACCUSED) CANNOT BE CLOSED

By
MUHAMMAD IKRAM
(LLM)
Visiting Faculty Member
College of Law (Gcuf)
149 District Courts, Faisalabad.

As a result of recent development in case law and steps taken by the Government of the Punjab, the trial of the accused in criminal matters has been made more secure. Constitutional safeguards like “due process” and “fair trial” ultimately ensured. Fears of the accused removed. Lame excuses finished and the Internationally recognized principle that the speedy trial of the criminal case is the right of the accused re-enlivened, Moreso, LHC and Government of the Punjab earned credit.

Government of the Punjab vide Notification No.28/2013-323 dated 20/01/2015 has enhanced the scope of cross examination by the accused by providing him the facility of a State paid Counsel in such situations in which to delay the trial or due to unavoidable circumstances, the accused fails to produce his Counsel for the purposes of conduct of cross examination on his or her behalf. Sec-19(8,8a) of Anti Terrorism Act-1997 are also relevant.

It is a common knowledge; Interrogation of a witness by the opposite party is called cross examination. Cross Examination is particularity and peculiarity, a product of the English Procedure and in the time of Bentham was completely absent in other systems of procedures based upon the Roman. It is a vital feature of all modern systems of evidence and as per frame of mind of professor Wigmore, “the greatest Legal engine ever invented for the discovery of truth (Wigmore Sec-1367). Right to cross examine has also been guaranteed by I.C.T.Y and I.C.C.P.R.

In a Criminal trial, a good cross examiner may layout a foundation to weaken a prosecution case through the application of alertness of mind during the exercise of cross examination. The object of cross examination is two fold. One to bring on record desirable facts of the case modifying the examination- in- chief or establishing the defense version of the accused. Secondly to impeach the credit of the witness. The right to cross examination is both available to the prosecution as well as to the accused. Article 44 of QSO 1984 is relevant if the preceding statement is disagreed.

Formerly, if during the course of criminal trial, the accused failed to produce or caused to be produced his counsel, there was no embargo to close his right of cross examination but a new situation has emerged and the criminal Courts are no more competent to close the right of the accused to cross examine or examine a witness who has deposed against him.

Time and again it has been held by the Superior Courts that the cross examination by an accused himself can never be a substitute for the cross examination carried out by a trained Legal mind/Counsel. This view was formed in the case of Saeed Muhammad Shah v/s the State (1993 SCMR 550). A criminal Court cannot in any way or manner whatsoever ask or compel the accused to conduct cross examination himself, this view was taken in the case of Waqar v/s the State (2013 P.cr.LJ.1279). Article 10-A of the Constitution 1973, ensures that no accused can remain unrepresented at the stage of cross examination.

High Court rules and orders Chapter 24 part C (Volume 3)  provides a facility of services of a counsel to those accused whose alleged offences are that of Capital Charge or punishable with death. Women prisoners even in other offences except summary trials enjoy the same facility. Province of the Punjab and its Government has taken the lead vide Notification No.28/2013-323 dated 20/01/2015 to provide the services of a counsel at State expenses even in those cases which are triable by Magisterial Courts. It is a sort of big Legal Practical Advisory Services to the accused community.

His Lordship Mr Justice Mahmud Ahmad Bhatti in the case titled Mujahid Hussain v/s the State etc as reported in PLJ-2015 has held that instead of closing the right of accused to cross examine, it is better to provide him the services of a counsel at state expenses. A comprehensive procedure has been provided vide the above quoted Notification for such services. A counsel engaged shall be paid according to the amount prescribed for each Court right from Court of Magistrate up to the Supreme Court of Pakistan. Question of fixation of fee, if a defense counsel is engaged as per Law Department manual has also been answered by LHC.

Conclusion:

It is due to recent development, exercise of power by the Court to close the right of cross examination by the accused has become a past and closed transaction as the facility for provision of counsels for pauper accused at state expenses in every criminal charge has been made available, as an alternative measure instead of destroying the right. Payment to such counsels shall be made by D.C.O./P,G,P, as the case may be,

eferences:

1.       Government of the Punjab vide Notification No.28/2013-323 dated 20/01/2015

2.       (Wigmore Sec-1367)

3.       Article 44 of QSO 1984

4.       (1993 SCMR 550)

5.       (2013 P.cr.LJ.1279)

6.       Article 10-A of the Constitution of the Islamic Republic of Pakistan 1973

7.       High Court rules and orders chapter 24 part C (Volume 3)

8.       I.c.t.Y (International Criminal Tribunal for Yogoslavia)

9.       I.c.c.p.R

10.     Consultees__Mr Muhammad Naeem Noshahi DPP, Faisalabad, Mr Muhammad Farooq Ahsan, DDPP, Faisalabad, Mr Gulam Murtaza, Assistant Professor, College of Law, GCUF. Dr. Muhammad Mumtaz, (Former Coordinator) Miss Maria Iqbal (LL.M, Lecturer Faisalabad College of Law)

----------------------