Clerical Mistake in Evidence

PLJ 2016 Cr.C . ( Lahore ) 439 [ Multan Bench Multan ] Present : Qazi Muhammad Amin Ahmed , J . EJAZ --Petitioner versus STATE and 10 others --Respondents Crl . Rev. No. 146 of 2015, heard on 15.10.2015 Dispensation of Criminal Justice-- ----Scope-- Adversial in nature--Clerical mistake--Rectification--Prosecution can, however, dislodge that presumption of innocence on strength of evidence to be adduced in accordance with rules of procedure--Trial of an accused is to be conducted in accord with commands of procedure; it must be least embarrassing to accused’ enabling him to conveniently and comfortably meet prosecution half way--Without being hyper-technical rules of procedure are to be faithfully followed as these constitute an integral part of due process of law which is inexorably annexed with procedural fairness. [P. 441] A Qanun -e- Shahadat Order, 1984 (10 of 1984)-- ----Art. 133(3)--Evidence in criminal trial--Cross-examination--Rectification--Evidence in a criminal trial is to be recorded in a manner provided under Art. 133 of Q.S.O. which permits re-examination only in relation to explanation of matters referred to in cross-examination or with a new matter by permission of Court--Provisions of Art. 133(3) cannot be invoked for rectification of an alleged error as no such rectification is contemplated thereunder and instead at most an explanation may be solicited from a witness with regard to his deposition in cross-examination. [P. 441] B Ch. Saeed Ahmad Farrukh , Advocate for Petitioner. Mirza Abid Majeed , DPG for State. Mr. Shakil Javed Ch. , Advocate for Respondents. Date of hearing: 15.10.2015 Judgment The petitioner, accompanied by his co-accused, is confronting indictment of homicide before a learned Addl. Sessions Judge at Chichawatni . One of the prosecution witnesses Manzoor Ahmad appeared as PW-3 and stated on oath that within his view Riaz , co-accused made two fire shots which hit Abdul Razzaq deceased on his back; this statement was made on 25-2-2015. On 31-3-2015, Manzoor Ahmad, PW-3 moved an application that injuries assigned to Riaz accused were in fact attributed by him to Ejaz , petitioner, however, due to clerical mistake, name of Ejaz found mention in the record; rectification was prayed for, contested by the petitioner, however, learned trial Judge vide impugned order dated 17-4-2015 recorded statement of Manzoor Ahmad (PW-3) afresh and thereby allowed him to rectify the alleged error through his re-examination. The defence , asked to cross-examine the witness, requested for adjournment to challenge the vires of re-examination in the High Court was declined with a forfeiture of right to cross-examination.

2. Learned counsel for the petitioner contends that there was no occasion for the learned trial Judge to allow re-examination of Manzoor Ahmad (PW-3) on a belatedly made request and that after taking such a drastic step to the detriment of the petitioner facing a charge which may entail ultimate sentence, a reasonable opportunity ought to have been afforded to challenge the vires of impugned action before the High Court. Contrarily, the learned counsel for the complainant has defended the impugned order on the ground that it was a clerical error, rectification whereof is in consonance with the case set up by the complainant on the day one.

3. Heard. Record perused.

4. Our system of dispensation of criminal justice is adversarial in nature, casting primary responsibility on the prosecution to drive home charge beyond a shadow of doubt against the accused, who would confront indictment under a presumption of innocence. The prosecution can, however, dislodge this presumption of innocence on the strength of evidence to be adduced in accordance with the rules of procedure. Trial of an accused is to be conducted in accord with the commands of procedure; it must be least embarrassing to the accused’ enabling him to conveniently and comfortably meet the prosecution half way. Without being hyper-technical the rules of procedure are to be faithfully followed as these constitute an integral part of Due Process of law which is inexorably annexed with procedural fairness. Procedural safeguards are essential to procedural fairness. Evidence in a criminal trial is to be recorded in a manner provided under Article 133 of the Qanun -e- Shahdat Order, 1984 which permits re-examination only in relation to the explanation of matters referred to in cross-examination or with a new matter by the permission of the Court. Provisions of sub-article (3) of Article 133 of the Order ibid cannot be invoked for the rectification of an alleged error as no such rectification is contemplated thereunder and instead at the most an explanation may be solicited from a witness with regard to his deposition in cross-examination. Even for the purposes of an explanation, prosecution is not to be readily obliged to fill up lacunas of its case. No doubt, the Court is vested with vast powers to allow such request, nonetheless, power of this amplitude is to be exercised with circumspection and caution and essentially in order to set the scales of justice in balance and not to bail out one of the parties before the Court. Being a neutral arbiter, Court owes no responsibility either to the prosecution or to the defence . Similarly, there was no occasion for the learned trial Judge to forfeit right of cross-examination with an unseemly haste. An accused, bracing the gallows, must be afforded a reasonable and meaningful opportunity to exclude every hypothesis of his guilt before the noose is cast around his neck. Impugned order dated 17-4-2015 is set aside, consequently proceedings drawn thereunder stand quashed. Revision allowed . (R.A.) Revision allowed