Law: Penal Code (XLV of 1860)

Section: 302,324,311,148,149

Penal Code (XLV of 1860)--- ----Ss. 302, 324, 311, 148, 149---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Fair trial---Scope---Accused were charged for committing murder of wife of accused and injuring her paramour---Record showed that the Trial Court recorded examination-in-chief of official witnesses in absence of the advocate for the accused and it was observed that the present case carried capital punishment and evidence (examination-in-chief, cross-examination and re-examination) of prosecution witnesses should be recorded in presence of his advocate---Logically, most of accused were laymen who would have little, if any, knowledge of the law and in the absence of defence counsel would be unable to adequately defend themselves---Inability on the part of accused, it would lead to an unfair trial and the same was in violation of Art. 10-A of the Constitution---Legal position was clear that a fair opportunity was not provided to the accused at the time of recording examination-in-chief of the prosecution witnesses---If counsel for the accused would have been present, possibility could not be ruled out that he might have raised objection on some legal issues---It was the mandate of the law that the cases involving capital punishment would not be tried in absence of the counsel for the accused---Circumstances suggested that the accused were prejudiced in the trial and defence, thus, a miscarriage of justice had been committed in the case---Procedure adopted by the Trial Court was illegal which was not curable and had vitiated the trial, therefore, the impugned was required to be set aside---Appeal was partly allowed by setting aside conviction and sentences recorded by the trial court and the case was remanded to the Trial Court for re-trial from the stage of recording of evidence of the prosecution witnesses. Shafique Ahmed v. The State PLD 2006 Kar. 377 rel. JUDGMENT ZULFIQAR ALI SANGI, J.---Through Criminal Appeal No. D-36 of 2019 appellants Ghulam Ali alias Lami and Dost Ali have impugned the judgment dated…

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