The Right to Cross-Examine is Fundamental to a Fair Trial and that Courts must Appoint Defense Counsel if the Accused fails to engage one --- Lahore High Court, Lahore
Islamabad 11-03-2025: In a significant ruling, the Lahore High Court, Multan Bench, has set aside the Special Judge Anti-Corruption’s order that barred the accused from cross-examining prosecution witnesses due to non-payment of diet money. The Court ruled that forcing an accused to deposit witness expenses is illegal and violates procedural fairness.
The case stemmed from FIR No. 7/2021, registered at Police Station ACE Multan, in which the Petitioner and nine others were indicted on charges of fraud and forgery under Sections 420, 467, 468, 471, and 109 of the Pakistan Penal Code (PPC) and Section 5(2) of the Prevention of Corruption Act, 1947.
During the trial, the Special Judge directed the accused to pay Rs.10,000 as diet money to facilitate the appearance of prosecution witnesses. When the petitioner failed to comply, his right to cross-examine was struck off, prompting him to challenge the decision before the Lahore Lahore High Court under Sections 435/439 Cr.P.C.
Mr. Justice Tariq Saleem Sheikh, in his detailed judgment, ruled that:
Section 244(3) Cr.P.C. explicitly states that an accused cannot be forced to bear witness expenses if charged with an offense punishable by imprisonment exceeding six months.
- Ahmad Vs. Additional District Judge (2008 SCMR 1330): Civil Courts may impose diet money, but Criminal Courts cannot.
- Ghulam Nabi Vs. Shaukat Ali (PLD 2007 Lahore 368): Unjust financial burdens on an accused violate fair trial rights.
Article 10A of the Constitution guarantees a fair trial, and Article 133 of the Qanun-e-Shahadat Order, 1984, ensures the accused’s right to cross-examine.
- Muhammad Bashir Vs. Rukhsar (PLD 2020 SC 334): Denial of cross-examination is unconstitutional.
- Ludi Vs. Switzerland (1992, ECHR): Right to confrontation is integral to fair trial guarantees.
If an accused is unable to produce counsel, the trial Court must appoint a state defense lawyer, instead of arbitrarily barring cross-examination.
- Abdul Ghafoor Vs. The State (2011 SCMR 23): State must ensure the accused is provided legal representation.
The Special Judge’s procedural flaw deprived the accused of fair trial rights, necessitating appellate intervention.
- Michael Garfield Lyttle Vs. The Queen (2004 SCC 5, Canada): Restricting cross-examination leads to injustice.
The Lahore High Court declared the trial Court’s order illegal and directed that:
- The Petitioner must be given one final opportunity to engage legal counsel for cross-examination.
If he fails to do so, the Court must appoint a state defense lawyer and proceed with the trial in accordance with the law.
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