Law: Penal Code (XLV of 1860)

Section: 302(b)

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Fair trial---Statements of witnesses recorded in absence of defence counsel---Accused was charged for committing murder of the cousin of complainant due to disagreement over grass-cutting---From the perusal of the evidence it appeared that the evidence of three witnesses had been recorded in the absence of the defence counsel-Thus, it was against the principle of fair trial and fair opportunity--Counsel for the complainant and prosecution department were confronted with the legal position of the case that the examination in chief of three witnesses were recorded in the absence of defense counsel, and their cross-examination was reserved on the request of his associate which was later on conducted---In a fair and transparent criminal justice system, the right to confrontation was the hallmark of fair trial protection---Right to confrontation was considered an integral element of the right to a fair trial---In the instant case, no doubt a counsel was engaged by the appellant to defend him, but he on the date when the case proceeded could not appear before the Trial Court, and in his absence, the examination in chief of the said witnesses were recorded in a capital sentence case---In such situation, the examination-in-chief of the witnesses, so recorded by the Trial Court, in the absence of legal counsel of the appellant could hardly be said to be under the requirement of law---Additionally, S.340 of the Cr.P.C. grants every accused person the right to be "defended" by a lawyer---Second issue was whether the crime weapon, a hatchet, was contaminated with human blood---Inconsistencies identified included discrepancies between the Chemical Examination Report, the Lash Chakas Form, the Danishtnama, the memo of dead body examination, and the memo of securing the crime weapon---Said discrepancies casted doubt on the conclusion that the hatchet contained human blood---To resolve said inconsistencies, the judicial propriety demanded that, the matter should be remitted to the Trial Court for further proceedings---Trial Court should record the examination in chief of said three witnesses and provide opportunity to defence counsel to cross-examine them---Said fact would provide a clear understanding of the circumstances surrounding the recovery and examination of the hatchet--Chemical Examiner should be examined by the Court to clarify the findings of their report and address any inconsistencies with the other documents--Chemical Examiner should explain the methodology used, the results obtained and the basis for their conclusion regarding the presence or absence of human blood on the hatchet---Defence counsel should be allowed to cross-examine the Chemical Examiner to challenge their findings and explore any potential weaknesses in their methodology or conclusions---Said fact would provide an opportunity for the defence to present their arguments and raise doubts about the reliability of the evidence---By following these steps, the Trial Court could ensure that the inconsistencies were thoroughly investigated, the evidence was properly evaluated and justice was served---Appeal was allowed by setting aside conviction and sentence and matter was remanded to the Trial Court for decision afresh---Appeal was disposed of accordingly.

Muhammad Arshad v. Qasim Ali and others 1992 SCMR 814; Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 1999; Irfan Ali v. The State 2015 SCMR 840; Khalid Mehmood v. The State and others 2021 SCMR 810; Muhammad Asif v. The State 2017 SCMR 486; Mst. Rukhsana Begum and others v. The State 2017 SCMR 596; Riasat Ali and others v. The State and another 2024 SCMR 1224 and Nadir Khoso and others v. The State and others 2024 YLR 1565 ref.