Law: Penal Code (XLV of 1860)

Section: 302(b)

Law: Criminal Procedure Code (V of 1898)

Section: 353

Law: Constitution of Pakistan, 1973

Section: 10A

Penal Code (XLV of 1860)--- ----S. 302(b)---Criminal Procedure Code (V of 1898), S. 353---Constitution of Pakistan, Art. 10A---Qatl-i-amd---Appreciation of evidence---Evidence to be taken in presence of accused---Right to fair trial and due process---Scope---Accused were charged for committing murder of the son of complainant by firing---Motive behind the occurrence was dispute over rotation of irrigating water---Record showed that the examination-in-chief of three prosecution witnesses were not recorded in presence of the two accused and the same were used against them for awarding conviction---Present case carried capital punishment and evidence (examination-in-chief, cross-examination and re-examination) of prosecution witnesses was to be recorded in their presence and in presence of their counsel---Even when the witnesses was examined in presence of accused but in absence of his counsel in cases of capital punishment the right of accused were being violated as 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---During the examination-in-chief of a prosecution witness the accused would not know which questions he could object to and which documents he could oppose being exhibited---Such inability on the part of accused would lead to an unfair trial and the same was in violation of Art. 10-A of the Constitution---Circumstances established that a fair opportunity was not provided to the accused persons at the time of recording evidence of the witnesses and the trial court did not perform its functions diligently and had not recorded examination-in-chief of witnesses in presence of the accused persons by ignoring Art. 10-A of the Constitution---Accused were prejudiced in the trial and defence, therefore, a miscarriage of justice had been committed in the case---Procedure adopted by the trial court was illegal that was not curable under S. 357, Cr.P.C.---Appeal was partly allowed by setting aside convictions and sentences recorded by the Trial Court and the case was remanded back to the Trial Court for re-examination of said three prosecution…

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