LAHORE: The Lahore High Court has ordered a fresh trial in a narcotics case as the convict was not represented by any counsel during the cross-examination of prosecution witnesses.

“Fair trial would be illusory unless the accused has a right to be represented and defended by a counsel of his own choice,” says the verdict authored by Justice Tariq Saleem Sheikh as senior member of a two-judge LHC bench.

Naubahar, a man convicted for possessing 1,415 grams hashish, challenged his conviction saying he was not given a fair trial as when the witnesses were examined he was not represented by a counsel.

A police station of Faisalabad district had registered a case against the convict under section 9 C of the Control of Narcotics Substance Act 1997.

In addition to the ground of unfair trial, the counsel for the convict also challenged the sentence for being rendered on a concocted prosecution story. He said all the witnesses were police officials and there was no independent evidence to corroborate their stance. He pointed out that although the alleged place of recovery was a thoroughfare, no private witness was associated with the proceedings.

The prosecution defended its case and negated the appellant’s argument regarding denial of a fair trial. It said the appellant had engaged a lawyer for his defence who duly represented him throughout the proceedings. However, the counsel was not available on the day of cross-examination so the appellant opted for cross-examining the prosecution witnesses himself.

The verdict states that the Constitution guarantees legal aid to an arrested person as his/her fundamental right. It says Article 10(1) ordains that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice.

It notes the trial was fixed for hearing on a number of dates but was adjourned as the prosecution witnesses did not turn up and the trial court had to issue arrest warrants against them. And on the day of cross-examination, the witnesses made themselves available for evidence but the defence counsel was absent.

“Nevertheless, the trial judge decided to proceed with the case, asking the appellant to cross-examine the two witnesses himself,” Justice Sheikh observed in the judgment.

He remarked that the cross-examination was the great legal engine ever invented for the discovery of truth.

The judge ruled that the trial court committed a material irregularity while conducting the proceedings of cross-examination and not affording an opportunity to the appellant to produce his counsel.

“We hold that the impugned judgment cannot be sustained. Therefore, we allow this appeal, set aside the said judgment and remand the matter to the learned trial court for a fresh decision after affording an opportunity to the appellant to cross-examine prosecution witnesses through his counsel,” the verdict concludes.

Published in Dawn, July 31st, 2019