THE HIGH COURT OF SINDH AT KARACHI

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Criminal Appeal No. 66 of 2022

Appellant : Ali Aziz through M/s Shoukat Hayat, Saqlain Shafi Raj and Muhammad Junaid Akram advocates

The State : The State through Peer Riaz Muhammad Shah DAG

Date of Hearing : 14.03.2024

Date of judgment : 14.03.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ali Aziz appellant along with co-accused Muhammad Nawaz, Mukhtiar Ali @ Jani and Javed were tried by I-Additional Sessions Judge/MCTC, Malir Karachi in S.C.No.1293 /2020. After regular trial, vide judgment dated 04.01.2022, above named co-accused were acquitted. However appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to undergo imprisonment for life with fine of Rs.1 Million. In case of default, he was ordered to suffer undergo 06 months SI. Benefit of Section 382-B Cr.P.C was extended to the appellant.

2. At the very outset, learned advocate for the appellant pointed out that trial court has committed several illegalities while conducting trial and such illegalities are not curable under the law. Learned advocate while highlighting the illegalities committed by the trial Court pointed out that examination-in-chief of P.W-3 Aamir Rasheed was recorded by the trial Court on 14.09.2021 at Ex.13 in absence of advocate for the appellant/accused and trial Court in a note in deposition mentioned that instead of Mr. Abdul Rasheed Katpar advocate for the appellant case shall be proceeded further by Mr. Abdul Jalil Hadi advocate on behalf of all accused as per previous orders. It is pointed out that Mr. Abdul Jalil Hadi advocate was appointed by the trial Court as a defence counsel on state expenses. Thereafter, Mr. Abdul Rasheed Katpar advocate filed power on behalf of appellant Ali Aziz. Learned advocate for the appellant further pointed out that evidence of P.W-4 Habibullah was recorded by the trial Court at Ex.16 on the same date (14.09.2021) and Mr. Abdul Jalil Hadi advocate had cross-examined the witness on same date. It is submitted that right of a fair trial was not provided to the appellant. It is further submitted that sufficient time was not provided to the newly appointed advocate for seeking instructions from the appellant for proceeding with the case before the trial Court; that trial Court failed to comply with Article 10-A of the Constitution of Pakistan, 1973. Lastly, it is submitted that illegalities committed by the trial Court are not curable in law trial is vitiated and prayed for remand of the case for recording examination-in-chief and cross-examination of P.Ws Aamir Rasheed and Habibullah in presence of advocate as well as the appellant.

3. DAG concedes to the legal position that fair trial has not been conducted by the trial Court and illegalities highlighted by the defence counsel are not curable under the law. He has also submitted for remand of the case to the trial Court for recording evidence of the aforesaid P.Ws afresh in accordance with law.

4. Heard learned counsel for the parties, re-examined the relevant record and have come to the conclusion that trial Court has committed illegality while recording examination-in-chief of P.W Aamir Rasheed on 14.09.2021 in absence of defence counsel, it amounts to denial of a fair trial. Another illegality committed by the trial Court was regarding examination-in-chief of P.W Habibullah and his cross-examination on the same day by newly appointed defence counsel without preparation and instructions in an offence under Section 9(c) of CNS Act 1997 which is punishable with death or imprisonment for life. A fair opportunity should have been provided by the trial Court for conducting trial. We hold that fair trial was not conducted in terms of Article 10-A of the Constitution of Pakistan, 1973, which speaks about right of fair trial and due process both in civil as also in criminal proceedings, which reads as under:

“10-A. Right to Fair Trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

5. The right to fair trial is a fundamental and Constitutional right belonging to every citizen. While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment are the essential attributes of criminal justice system based on the Constitutional command. In Muhammad Bashir vs. Rukhsar (PLD 2020 SC 334) the Apex Court has held that “right to cross-examine is the right of the adverse party which right he/she may forego but one which he/she cannot be deprived of. Criminal trial of an accused must be conducted with utmost fairness. Fundamental right of fair trial which the Constitution guaranteed is violated if any accused is deprived of the opportunity to cross-examine a witness deposing against him.”

6. For the above stated reasons, we have come to conclusion that illegalities committed by the trial Court are not curable under the law. Resultantly, conviction and sentence recorded by the trial Court vide judgment dated 04.01.2022 are set aside and case is remanded to the trial Court for recording evidence of P.Ws Aamir Rasheed and Habibullah (examination-in-chief and cross-examination) afresh in presence of defence counsel. Thereafter, statement of accused shall be recorded afresh in terms of Section 342 Cr.P.C and trial Court after hearing the parties shall pass judgment strictly in accordance with law.

7. Learned advocate for the appellant pointed out that case is old of 2020, trial Court is directed to decide the case within 01 month under intimation to this court.

8. Criminal Appeal No. 66 of 2022 is disposed of in the above terms. Office is directed to return R&Ps to the trial Court forthwith.

JUDGE

JUDGE