Accused had fundamental constitutional and legal right to have fair trial and to get opportunity to defend himself for the charges levelled against him

Citation Name : 2018 YLR 2128 KARACHI-HIGH-COURT-SINDH
Side Appellant : IRFAN ALI
Side Opponent : State
S.353---Penal Code (XLV of 1860), Ss. 365-A & 395---Constitution of Pakistan, Art.10-A---Kidnapping or abducting for extorting property, valuable securities, dacoity--- Appreciation of evidence---Fair trial---Scope---Evidence to be taken in presence of accused---Trial Court recorded the evidence of as many as seven prosecution witnesses in ABSENCE OF ACCUSED ---Procedure adopted by the Trial Court was not in accordance with law, because accused were condemned unheard as they were not provided an opportunity to cross-examine the prosecution witnesses whose evidence was recorded in their absence and taking such evidence into account, accused persons were convicted---Trial Court while convicting accused persons had not taken into account prescribed law as envisaged under Art.10-A of the Constitution; which guaranteed for fair trial in order to determine the civil as well as criminal rights of any citizen---Accused having not been afforded a fair trial and they having been condemned unheard in violation of law and Constitution, their appeals were partly allowed; conviction and sentence, recorded by the Trial Court, were set aside and case was remanded to the Trial Court with direction to record the evidence of the prosecution witnesses by affording the opportunity to accused persons to cross-examine witnesses and pass judgment afresh within three months positively after hearing both the parties in accordance with law.

Citation Name : 2017 MLD 7 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : BHOORAL KHAN
Side Opponent : State
S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.19(10), (12)---Constitution of Pakistan, Arts.9, 10 & 10-A---Qatl-i-amd---Appreciation of evidence---Conviction in absentia---Right to fair trial---Accused after having been declared proclaimed offender, had been sentenced to death and application filed by accused under S.19(12) of the Anti-Terrorism Act, 1997, was also dismissed by the Trial Court---Section 19(10) of Anti-Terrorism Act, 1997, which dealt with trial of a proclaimed offender in absentia, stipulated and made it mandatory for the Trial Court to conduct an inquiry in respect of deliberate ABSENCE OF ACCUSED ; without fulfilling the direction made therein, no conviction could be sustained---Accused, who was sentenced to death in absentia, could not be arrested and his non-bailable perpetual warrants remained in field---Accused, was subsequently arrested and he submitted application under S.19(12) of Anti-Terrorism Act, 1997, which was dismissed vide impugned order---Contention of accused was that he did not present himself before the court due to lack of information, and not to evade justice deliberately as according to him he was not aware of the fact that a case had been lodged against him---Accused was not convicted according to law, because the pre-requisites of fair trial were not provided to him---Procedure adopted by the Trial Court, was not in accordance with law and Arts.9, 10, 10-A of the Constitution---Right of fair trial was guaranteed under Art.10-A of the Constitution---Trial Court having passed the conviction and recorded the sentence of accused in hasty manner, without appreciating the evidence on record, conviction and sentence of accused, could not be sustained---Impugned judgment passed by the Trial Court was set aside and case was remanded to the Trial Court for trial fresh.

Citation Name : 2017 PCrLJ 582 PESHAWAR-HIGH-COURT
Side Appellant : MUHAMMAD RIAZ
Side Opponent : State
Ss. 302, 337-F, 34 & 57---Criminal Procedure Code (V of 1898), S.512---Constitution of Pakistan, Arts.9, 10 & 10-A---Qatl-i-amd, ghayr-jaifah, common intention---Fractions of terms of punishment---Appreciation of evidence---Trial Court awarded sentence in absentia---Accused having absconded, Police after completion of investigation submitted report under S. 173, Cr.P.C., to the Trial Court in ABSENCE OF ACCUSED in view of S.512, Cr.P.C.---Trial Court on basis of evidence recorded in absentia, sentenced accused to suffer life imprisonment till death---Validity---Trial Court neither had framed charge against accused, nor recorded his statement, though he was not present before the Trial Court---Under provisions of S.512, Cr.P.C., evidence of prosecution witnesses recorded against accused on account of his absconsion, in absentia, only would be used in evidence against him on his arrest, during course of trial for the offence with which he was charged---Provisions of S.512, Cr.P.C., had conferred no jurisdiction on the court to convict and sentence accused in absentia---Paramount consideration and object of S.512, Cr.P.C., was to preserve the evidence to exclude the possibility of loss of evidence at the trial, when accused was arrested and prosecution witnesses were not available---Accused had fundamental constitutional and legal right to have fair trial and to get opportunity to defend himself for the charges levelled against him---Articles 9 & 10 of the Constitution, had guaranteed life and liberty of every person and no person would be deprived, either of his life or liberty, save in accordance with law---Sentence awarded to accused was against the mandatory provisions of law---Accused had not been afforded a fair trial and had been condemned unheard, without opportunity to cross-examine the witnesses, who had deposed against him, which was sheer violation, not only of relevant law, but also of Arts.9, 10 & 10-A of the Constitution---Impugned judgment, conviction and sentence of accused, were set aside and case was remanded to the Trial Court for trial in accordance with law, in circumstances.