07/06/24

Team Code: 13A

IN THE HIGH COURT OF BALOCHISTAN,

QUETTA

CRIMINAL Appeal

UDAS KHAN……………………………………………………………………………………………………………………..APPELLANT

THE STATE…………………………………………………………………….………………………………………………RESPONDENT

MEMORIAL ON BEHALF OF APPELANT

UNIVERSITY LAW COLLEGE QUETTA 1ST INTRA-COLLEGE MOOT COURT

COMPETITION 2024

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TABLE OF CONTENTS

 Index of Authoritee

 Statement of Jurisdiction
 Questions Presented
 Statement of Facts
 Summary of Pleadings
 Pleadings
 Prayers for relief

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INDEX OF AUTHORITIES

Muhammad Siddique VS state the Supreme Court of Pakistan

Shafique Ahmed v. The State (PLD 2006 Kar. 377)
Cr. Jail Appeal No.S-86 of 2021
Allahdino alias Baboo versus The State (2019 P. Cr.L.J
Qalandro vs State.
Mukhtiar alias Mukho versus The State (2018 P.Cr.L.J 943).

STATEMENT OF JURISDICTION

The Honorable High Court hae the juriedicton to decide the foregoing criminal appeal on the baeie of
limitaton act artcle 5 “which givee any pereon the right to condone a delay, provided that there ie a
eufficient ground for the delay and the right to fair trial, artcle 10A of conettuton of Pakasietan.ak

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QUESTIONS PakRESENTED

A.ak Whether the delay in fling the inetant appeal may be condoned under Secton 5 of the Limitaton
Act, 1908?

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B.ak Whether the proeecuton had failed to prove ite caee beyond every ehadow of reaeonable doubt
before the trial court and if not, whether the convicton of the appellant ehall be quaehed?
C.ak Whether the appellant wae properly repreeented through a couneel before the trial court and if
not, whether thie ie a eufficient ground to quaeh the impugned judgment dated 24.ak03.ak2021?

STATEMENT OF FACTS

1.ak Abrae Khan ie a labourer by profeeeion and ie reeiding in Blue Houeing Scheme (BHS), Nawa
Killi, Queta.ak Hie younger brother Shamehir Khan ie aleo having a houee in the eame colony.ak
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Their paternal uncle Udae Khan hae been reeiding along with hie family in Sandeep Abad, eome
12 silometere away from BHS.ak

2.ak In the morning of 15.ak12.ak2017, Shamehir Khan wae in City Shopping Mall where he met with hie
uncle Udae Khan and a diecueeion over a domeetc ieeue occurred between them and Shamehir
Khan hae altercated Udae Khan.ak

3.ak On 15.ak12.ak2017 at 1:45 PakM Shamehir Khan wae silled in hie houee in preeence of Abrae Khan,
Shumar Khan, the maternal uncle of the deceaeed and Adan Khan, hie maternal couein.ak

4.ak That on the eame day at 7:30 PakM Abrae Khan hae lodged an FIR in the Pakolice etaton of Nawa
Killi againet Udae Khan and hie eon Pakarae Khan to the following efect:

He (Abras Khan) is labourer by profession and are two brothers. His younger brother
Shamshir Khan had altercated over domestic matter with Udas Khan whereupon said
Udas Khan was annoyed with him. On 15.12.2017, he along with his brother
Shamshir Khan, uncle Shumar Khan and maternal cousin cousin Adan Khan were
available in the house of his brother Shamshir Khan, in the meantime, at about 01.45
P.M, they saw and identified accused namely Udas Khan with DBBL gun and Paras
Khan with pistol who entered in the house. On coming, accused Udas Khan asked his
brother Shamshir Khan that he has altercated with him therefore he will not spare
him, saying so, he fired two rounds straightly at him with intention to commit his
murder which hit him and he fell down, thereafter, both the accused fled away. He
then saw and found his brother having firearm injuries on his neck and armpit which
were bleeding and he was lying dead. He intimated the incident to the police who
after getting conducted the postmortem, handed over the dead body of deceased to the
complainant and after funeral ritual, he came at police station and got registered the
FIR against the accused.

5.ak The Inveetgaton Officer eubmited the ueual report to the court of the concerned Judicial
Magietrate – I, Queta who then eent the record to the Court of Seeeion, Queta for trial.ak

6.ak Later on, the inveetgaton officer eubmited fnal challan U/S.ak512 Cr.akPakC ehowing all the
accueed ae abecondere and learned trial Court afer obeerving codal formalitee declared the
accueed ae proclaimed ofendere and then sept the caee againet them on dormant fle tll their
arreet vide order dated 18-04-2019.ak

7.ak Subeequently, Udae Khan wae apprehended by the police at afernoon on 07.ak08.ak2020 from hie
houee and produced before the Court of concerned Judicial Magietrate on 10.ak08.ak2020 under
eupplementary report who then eent up the caee under eecton 190 (b) Cr.akPakC to the Court of
Seeeione where the main caee wae pending.ak

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8.ak On 20.ak08.ak2020, it wae obeerved by learned trial Court that the ofence involved, wae entailing
capital puniehment, therefore, the charge could not be framed againet the accueed on account
of hie failure to engage a couneel.ak

9.ak However, on 22-09-2020, on the baeie of the Inveetgaton Report under eecton 173 Cr.akPak.akC
againet the Udae Khan, the accueed.ak Hence, the formal charge wae framed againet him to
which he pleaded not guilty.ak Thie charge wae framed without being engaging a couneel by the
accueed and thereafer three adjournmente were granted to accueed for engaging a couneel
but he failed to engage the couneel ae ueual.ak

10.ak The caee dairiee dated 27-08-2020, 06-09-2020 and 14-09-2020 refecte that defence couneel
wae preeent.ak However, the caee diariee dated 08.ak10.ak2020,16.ak10.ak2020 and 21.ak10.ak2020 reported
the learned defence couneel being abeent.ak Further, in the caee diary dated 28.ak10.ak2020, it wae
obeerved that the accueed hae not engaged yet hie council.ak However, on 01.ak11.ak2020, the
accueed fnally engaged hie couneel.ak

11.ak On 21.ak10.ak2020, PakW-01, SHO Jander Khan wae recorded while obeerving that deepite eeveral
chancee the appellant failed to engage hie couneel.ak

12.ak To eetablieh the accueaton againet appellant/accueed, the proeecuton examined all the fve
witneeeee i.ake PakW-01 SIO/SHO Jander Khan, PakW-02 Complainant Abrae Khan, PakW-03 Tapedar
Faaz Guman, PakW-04 medical officer Dr.akNauzen and PakW-05 ASI Janbar Dad, who all produced
certain relevant documente in eupport of their etatemente.ak Thereafer, the learned State
Couneel cloeed ite eide.ak

13.ak The accueed in hie etatement recorded in terme of Secton 342 Cr.akPak.akC, denied the allegatone
leveled againet him by pleading hie innocence.ak However, he neither examined himeelf on oath
in dieproof of the charge nor led any evidence in hie defence.ak

14.ak The learned trial Court on evaluaton of the material brought on record and hearing couneele
for the partee convicted the Udae Khan, the accueed and eentenced him to life imprieonment
vide impugned judgment dated 24.ak03.ak2021.ak

15.ak The accueed, Udae Khan, wae behind the bare during the entre proceedinge of the trial and
afer convicton he remained in the jail.ak However, from fail he managed to fle a criminal
appeal on 16.ak04.ak2024, to the Honorable High Court of Balochietan, challenging the veracity of
the impugned judgment dated 24.ak03.ak2020 again without engaging a couneel in thie regard.ak

16.ak The Honorable High Court vide order dated 02.ak04.ak2024 hae appointed a counsel for the
appellant on state’e expeneee.ak

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17.ak The appeal hae been fxed for hearing on 06.ak06.ak2024.ak Following are the queetone pending
before the court to decide:

SUMMARY OF PakLEADINGS

The delay in fling the inetant appeal may be condoned under Secton 5 of the Limitaton Act, 1908, in
order to fulfll the eeeence of law and the prosecution has failed to prove its case beyond
the reasonable doubt before the trail court because the Learned counsel for the
appellant criticized the impugned judgment and argued that, most of the

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prosecution witnesses are police personnel of the same police-station. Also it

was observed that learned trial court recorded examination-in-chief of ofcial
witnesses in absence of the advocate for the appellants.ak Laetly, the appellant wae not
repreeented properly before the trial court and the accueed, udae shan wae behind the bare
during entre proceedinge of the trial and afer convicton he remained in the jail.ak So it ie illegal
and the accueed ie aleo enttled to the fair trail and due proceee of law.ak According to (artcle
10A) of conettuton of Pakasietan 1973.ak

PakLEADINGS

A.ak Whether the delay in fling the inetant appeal may be condoned under Secton 5 of the
Limitaton Act, 1908?

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The delay in fling inetant appeal may be condoned under Secton 5 of the Limitaton Act,
1908, in order to fulfll the essence of law.ak The Secton 5 of the Limitaton Act providee
that the appeal may be admited even afer the limitaton, if the appellant had sufficient
reasons for delay in fling an appeal.ak So, the appellant wae behind the bare throughout the
entre trial and even afer the convicton, therefore the appeal wae delayed due to
appellant'e incarceraton and lacs of acceee to legal reeourcee which ie hie fundamental
right of equality provided to him under artcle 04 of the Conettuton of Pakasietan, and The
Honorable High Court of Balochietan appointed legal couneel for him which aleo
demonetrate the dieadvantaged poeiton of appellant.ak Secondly, the appellant wae not
having a couneel to repreeent him due to which he could not fle appeal within preecribed/
limited tme.ak Thue theee are the reaeonable grounde upon which the Honorable Court may
condone the delay in fling inetant appeal.ak In the caee of Muhammad Siddique VS etate the
Supreme Court of Pakasietan aleo condoned the delay of 435 daye, tasing into account the
eentence of life imprieonment and appellant'e illiteracy.ak

B.ak Whether the proeecuton had failed to prove ite caee beyond every ehadow of reaeonable doubt
before the trial court and if not, whether the convicton of the appellant ehall be quaehed?

The prosecution had failed to prove its case beyond every shadow of
reasonable doubt before the trail court.

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1.ak The trial court recorded the statements of appellants under Section 342

Cr.P.C. in which they denied the prosecution allegations against them

and also denied to examine themselves on oath and to lead evidence in
their defense.

2.ak The learned trial Court on conclusion of trial and hearing the advocate

for the appellants passed the impugned judgment whereby convicting

and sentencing appellants, as stated above.

3.ak Learned counsel for the appellant criticized the impugned judgment and

argued that, most of the prosecution witnesses are police personnel of

the same police-station. He further contended that examination-in-chief
of most of the witnesses was recorded in absence of the advocate of the
appellant which caused prejudice to the appellants in their defense, he
further submitted that the case may be remanded to the trial court for
recording evidence in presence of advocate of the appellants, being case
of capital punishment.

We also observed that learned trial court recorded examination-in-chief of

ofcial witnesses in absence of the advocate for the appellants and it is
observed that the present case carries capital punishment and evidence
(examination-in-chief, cross examination and re-examination) of prosecution
witnesses should be recorded in presence of his advocate. This is but logical as
most of accused are laymen who would have little, if any, knowledge of the law
and in the absence of defense counsel would be unable to adequately defend
themselves. For example, 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 his part
in our view would lead to an unfair trial and the same is in violation of Article
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10-A of the Constitution of Islamic Republic of Pakistan, 1973,the same is

reproduced 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.”

4.ak Right of defend to the accused has also been provided in the Criminal

Procedure Code, 1898, under section 340(1), Cr.P.C. and the same is
reproduced as under:-
"340. Right of person against whom proceedings are instituted
to be defended and his competency to be a witness.--(1) Any
person accused of an ofence before a Criminal Court or against
whom proceedings are instituted under this Code in any such
Court, may of right be defended by a pleader."

5.ak Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal

Circulars provide that on the committal of the case the Magistrate is

required to ascertain from the accused as to whether he intends to
engage a legal representative at his own expense otherwise the Sessions
Court would provide an Advocate on State expense to defend him. The
said Circular is reproduced as under:-

"6. In all cases in a Court of Session in which any person is liable

to be sentenced to death, the accused shall be informed by the
Committing Magistrate at the time of committal, or if the case has
already been committed by the Sessions Court that, unless he
intends to make his own arrangements for legal assistance, the
Sessions Court will engage a Legal practitioner at Government
expense to appear before it on his behalf. If it is ascertained that
he does not intend to engage a legal representative at his own
expenses, a qualifed Legal Practitioner shall be engaged by the
Sessions Court concerned to undertake the defence and his
remuneration, as well the copying expenses incurred by him, shall
be paid by Government.

The appointment of an advocate or pleader for defence should not

be deferred until the accused has been called upon to plead. The
Advocate or pleader should always be appointed in sufcient time
to enable him to take copies of the deposition and other necessary
papers which should be furnished free of cost before the
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commencement of the trial. If after the appointment of such legal

representative the accused appoints another Advocate or pleader,
the Advocate or pleader appointed by the Court may still in its
discretion be allowed his fee for the case."

6.ak The Sindh Chief Court Rules (Appellate Side) (Rule 35) isalso deals with

the same subject and the same is reproduced as under:--

"35. In what matters Advocate appointed at Government cost.

When on a submission for confrmation under section 374 of the
Code of Criminal Procedure, 1898, or on an appeal from an
acquittal or on an application for revision by enhancement of
sentence the accused is undefended, an Advocate shall be
appointed by the Division Court to undertake the defence at the
cost of Government in accordance with the Government
notifcation or rules relating thereto. Such Advocate shall be
supplied a copy of the paper book free of cost."

7.ak As has been discussed above,the legal position is clear that a fair

opportunity was not provided to the appellants at the time of recording

Examination-in-Chief of the PWs. 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 is the mandate of the law that
the cases involving capital punishment shall not be tried in absence of
the counsel for the accused as has been held by this court in case
of Shafiue Ahmed v. The State (PLDe 2006e Kar. 377)e wherein this
court has held as under:-
"It is one of the duties of the Court of Session to see that the
accused is represented by a qualifed legal practitioner in the
cases involving capital punishment. Thus, it is the mandate of the
law that cases involving capital punishment shall not be tried in
the absence of Advocate for the accused or proceeded without frst
appointing an Advocate for the accused to defend him if he is
unable to do so"

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8.ak In these circumstance, we are of the considered view that the trial court

did not perform its functions diligently and recorded examination-in-

chief of witnesses named above in absence of the defense counsel by
ignoring Article 10-A of the Constitution of Islamic Republic of Pakistan,
1973, section 340(1), Cr.P.C. and Circular 6 of Chapter VII of Federal
Capital and Sindh Courts Criminal Circulars so also settled principles of
law. As such, the appellants were prejudiced in the trial and defense.
Therefore, a miscarriage of justice has been committed in the case.
Procedure adopted by the trial court was illegal that was not curable
under section 537, Cr.P.C. and has vitiated the trial. Therefore, the
impugned judgment is required to be set aside.
9.ak As has been discussed above, appeal is partly allowed. The conviction

and sentence awarded to the appellant through impugned judgment

dated: 24.03.2021 are to be quashed, the case is remanded back to the
trial Court for re-trial from the stage of recording of evidence of
prosecution witnesses (whose chief-examination was recorded in
absence of advocate of the appellants) in presence of the advocate for the
appellants in accordance with law. Thereafter, to record statement of
accused under section 342 Cr.P.C afresh and after giving full
opportunity of hearing to both the parties and to decide the case
expeditiously in accordance with law.
10.ak Since we have remanded the case to the trial court therefore, the plea of

bail is also to be decided by the trial court if the appellants moved their
bail application. In these circumstances trial court is further directed to
decide the bail application of the appellants if they fle expeditiously in
accordance with law.
11.ak The above appeal and the confrmation reference are disposed of in the

above terms.

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C.ak Whether the appellant wae properly repreeented through a couneel before the trial court and if
not, whether thie ie a eufficient ground to quaeh the impugned judgment dated 24.ak03.ak2021?

The appellant wae not repreeented properly before the trial court becauee;
1.ak The appellant (udae shan) wae apprehended by the police at afernoon on 07.ak08.ak2020 from
hie houee and produced before the court of the concerned judicial magietrate on 10.ak08.ak2020.ak
So here it’e illegal becauee under (eecton 61 of cr.akpc).ak Pakereon arreeted not to be detained more
than twenty four houre excluding the tme neceeeary for the journey from the place of arreet to
the magietrate’e court.ak So, if a pereon detained in cuetody more than the eaid period it ie
violaton of eecton 61cr.akpc.ak

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And thie ie aleo menton in the (artcal10) of conettuton of Pakasietan that any pereon who ie
arreeted and detained in cuetody ehall be produced before a magietrate within a period of
twenty - four houre of euch arreet.ak

2.ak The accueed, udae shan wae behind the bare during entre proceedinge of the trial and afer
convicton he remained in the jail .akHowever from jail he managed to fle a criminal appeal on
16.ak04.ak2024 , to the honorable high court of Balochietan challenging the veracity of the
impugned judgment dated 24.ak 03.ak2021.ak So it ie illegal and the accueed ie aleo enttled to the fair
trail and due proceee of law .ak According to (artcle 10A) of conettuton of Pakasietan 1973 that
there ie a right to fair trial every citzen ehall be enttled to fair trial and due proceee of trial in
any criminal charge againet him.ak So here the appellant ie behind the bare during entre
proceeding of trial hie rigth to fair trial ie violated.ak And under eecton( 342 cr.akpc) the accueed to
explain any circumetancee appearing in the evidence againet him the court may at any etage of
an inquiry or trial without previouely warning accueed put euch queeton to him ae the court
coneider neceeeary and ehall for the purpoee the aforeeaid queeton him generally on the caee
afer witneeeee for proeecuton have been examined and before he ie called on for ie defenee.ak
So here the appellant ie not properly repreeented before the trial court through a couneel
becauee hie many right ie violated.ak So seeping in view all the above mentoned pointe are
eufficient ground to reveree the impugned judgment dated 24.ak03.ak2021.ak
Case law
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr.ak Jail Appeal No.akS-86 of 2021
Date
Order with eignature of Judge
Date of hearing:
13.ak06.ak2023
Date of Judgment:
20-06-2023
Mr.ak Amjad Ali Gabol, Advocate for the Appellant
Mr.ak Shaf Muhammad Mahar, Deputy Pakroeecutor General, Sindh
JUDGMENT;
Amjad Ali Bohio, J:- Thie appeal hae been fled impugning the judgment dated October 13, 2021,
paeeed by the Court of Additonal Seeeione Judge-II(Gender Baeed Violence Court) Sussur in
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Seeeione Caee No.ak 413/2020 arieing out of Crime No.ak 121 of 2020, regietered at Pakolice Staton
Rohri, for ofence under Secton 364-A of the Pakasietan Pakenal Code.ak Through the eaid judgment,
appellant Farooq Ahmed hae been found guilty thereby convicted for commieeion of ofence
under eecton 364-A PakPakC and eentenced to R.akI.ak for eeven (07) yeare with beneft of eecton 382-
B Cr.akPak.akC.ak
2.ak Neceeeary facte of the caee are that FIR wae lodged on 19-07-2020 at 19:30 houre by
complainant Altaf Hueeain etatng therein that he ie a Railway employee having two eone
namely Warie Ali (aged about 6 and a half yeare), Ahad Ali and one daughter namely Noor
Fatma (aged about 3 and a half yeare old).ak On 19-07-2020 when he returned home afer
completng hie dutee, hie brothere Aijaz Ali and Ameer Hueeain informed him that hie eon Warie
Ali and daughter Noor Fatma were mieeing ae euch he alongwith hie brothere conducted eearch
for children and aleo informed Pakolice Conetablee Ali Bux and Saddam Jatoi who being on patrol
duty accompanied them.ak When they reached at the bacs eide of fate near Madni Maejid at
around 6:00 p.akm.ak, they obeerved that one individual wae tasing away both children.ak Therefore
with the help of police officiale the eaid pereon wae apprehended who identfed himeelf ae
Farooq Ahmed eon of Muhammad Nawaz Korai.ak Thereafer the accueed wae brought at police
etaton where inetant FIR wae regietered.ak
3.ak Afer regietraton of FIR, inveetgaton wae conducted and the
Inveetgatng Officer eubmited report under eecton 173 Cr.akPakC eending up the
appellant/accueed Farooq Ahmed to face trial.ak Caee then proceeded
providing documente/police papere to accueed followed by framing of charge at Exhibit 2 to
which he pleaded not guilty and claimed for trial ae indicated in hie plea at Exhibit 2-A.ak
4.ak To eetablieh ite caee, proeecuton examined Complainant Altaf Hueeain at Exhibit 3, PakW-2
Ameer Hueeain at Exhibit 4, PakW-3Inveetgatng Officer ASI Jahangeer Ali Jagiraniat Exhibit 6 and
PakW-4 HC Doet Muhammad at Exhibit 7.ak Afer conclueion of recording of evidence of proeecuton
witneeeee, the proeecuton eide of evidence wae cloeed by concerned proeecutor at Exhibit8.ak
5.ak
Statement of accueed under eecton 342 Cr.akPak.akC.ak wae recorded at
Exhibit 9 wherein appellant/accueed denied the proeecuton evidence recorded againet him and
contended that there wae a land diepute between him and the complainant who hae faleely
implicated him in thie caee.ak Appellant/accueed neither teetfed on oath nor aeeerted for hie
right to produce the evidence in hie defence.ak
6.ak
Afer hearing the argumente advanced by the couneel repreeentng

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both partee trial court delivered the judgment convictng the appellant/accueed, the viree
whereof are the eubject of inetant appeal.ak
7.ak
I have heard the argumente of learned couneel for appellant and
learned Deputy Pakroeecutor General (DPakG) appearing on behalf of the State.ak I have aleo gone
through the evidence brought on record during trial.ak
8.ak The learned couneel for appellant hae argued that the appellant wae not properly defended
before trial court ae evidence of two proeecuton witneeeee wae recorded in the abeence of the
appellant'e couneel.ak Thie, according to the appellant'e couneel hae reeulted in eignifcant
prejudice to the appellant'e caee and deprived him of fundamental right to a fair trial, ae
guaranteed by The Conettuton of the Ielamic Republic of Pakasietan, 1973.akFurthermore, the
appellant'e couneel contende that the trial court mainly baeed ite convicton on the proeecuton
evidence ignoring the evidence eupportng the defenee claim of a diepute over landed property.ak
Learned couneel further aeeerte that the trial court hae aleo failed to coneider the lacs of
corroboraton in the complainant'e evidence.ak He hae therefore prayed that the appeal may be
allowed.ak
9.ak Learned Deputy Pakroeecuton General (D.akPak.akG.ak) aeeerted that both the complainant and
Pakroeecuton Witneee (PakW) Ameer Hueeain provided coneietent and credible evidence regarding
the arreet and recovery of the children on July 19, 2020, at 6:00 p.akm near Madni Maejid, behind
Flate at Rohri and both witneeeee were thoroughly croee examined but their teetmony could
not be ehatered.ak He further contende that their evidence remained reliable, coneietent, and
natural and ae againet it, the appellant failed to produce any documentary or oral evidence to
eubetantate claim of land diepute thereby failed to eetablieh the complainant'e malicioue intent
in faleely implicatng him.ak Therefore trial court hae rightly convicted the appellant/accueed
baeed on the available evidence.ak
10.ak Afer coneidering the argumente, evidence and record hae been carefully read and perueed.ak
On reading of evidence, it ie obeerved that the complainant Altaf Hueeain and PakW Ameer
Hueeain were croee-examined by the couneel repreeentng the appellant/accueed.ak However
during recording of evidencee of I.akO/ASI Jahngeer Jagirani on 16.ak08.ak2021 and HC Doet
Muhammad on 30.ak08.ak2021, the couneel for the appellant/accueed, Mr.ak Dilawar Ali Jatoi wae
abeent.ak On further perueal of caee diariee, it ie evident that complainant Altaf Hueeain and PakW
Ameer Hueeain were initally examined on 11.ak02.ak2021 and the caee wae then adjourned
multple tmee due to the non-appearance of remaining proeecuton witneeeee leading to a
repetton of the proceee for approximately thirteen (13) hearinge.ak ASI Jahangeer fnally
appeared on 16.ak08.ak2021, and hie evidence wae recorded in the abeence of the couneel for the
appellant/accueed.ak Similarly, on 30.ak08.ak2021, the laet witneee, Doet Muhammad wae examined

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in the abeence of the couneel for the appellant/accueed ae well.ak It ie important to note that the
appellant/accueed remained in cuetody during the period of trial.ak
11.ak In euch circumetancee, prima facie it appeare that due opportunity to croee examine above
two witneeeee wae not provided to the appellant/accueed, ae their evidence wae recorded in
the abeence of hie couneel.ak It ie aleo evident that appellant/accueed wae neither ofered nor
aesed about engaging a new couneel to defend the caee before recording the evidence of the
aforementoned two proeecuton witneeeee.ak Additonally, the appellant ie admitedly an
illiterate pereon ae ie evident from hie etatement recorded under eecton 342 Cr.akPak.akC, which
beare hie Lef Thumb Impreeeion (L.akT.akI) and he cannot be expected to be familiar with the art of
croee examinaton to defend hie caee legally.ak Thue, the appellant hae been deprived of hie legal
right without being provided a proper opportunity for croee examinaton, ae held in the caee of
Mushtar aliae Musho vereue The State (2018 Pak.akCr.akL.akJ 943).ak
It ie important to note that our Conettuton guaranteee the "Right to Fair Trial" for every citzen
of the country ae provided under Artcle 10-A of the Conettuton of the Ielamic Republic of
Pakasietan, 1973.ak For reference, Artcle 10-A ie reproduced below:
“ Right to Fair Trial[10A.ak For the determinaton of hie civil righte and obligatone or in any
criminal charge againet him a pereon ehall be enttled to a fair trial and due proceee.ak]“
12.ak The appellant/accueed hae a etatutory right to legal repreeentaton.ak The trial court wae
duty-bound to aes the appellant if he required proper repreeentaton by a pleader, but
there ie no informaton available on record whether euch an opportunity wae given to
the appellant.ak Afer the introducton of Artcle 10-A in the Conettuton of the Ielamic
Republic of Pakasietan, 1973, a fair trial hae become a fundamental right.ak Secton 340(1)
of the Criminal Pakrocedure Code (Cr.akPak.akC) aleo etpulatee the right of a pereon againet
whom proceedinge are inettuted to be defended by a lawyer, which reade ae followe:
“340.ak Right of pereon againet whom proceedinge are inettuted to be defended and hie
competency to be a witneee.ak(1) Any pereon accueed of an ofence before a Criminal Court or
againet whom proceedinge are inettuted under thie Code in any euch Court, may of right be
defended by a pleader.ak
It ie well-snown to all preeiding officere of the Dietrict Judiciary in thie province that a liet of
advocatee from each dietrict ie duly approved by the Chief Juetce of the High Court of Sindh, in
accordance with Rule 8(1) of the Dietrict Legal Empowerment Commitee (DLECe).ak Theee
advocatee, who provide free legal aid to deeerving litgante, are enttled to receive their
profeeeional feee from the funde allocated under the Head of DLEC.ak The Finance Department of
the Government of Sindh aleo providee funde for advocatee appointed to repreeent pauper
accueed individuale at the etate'e expenee.ak A liet of couneel for repreeentng pauper accueed
individuale in each dietrict hae been circulated, and thie informaton ie snown to every preeiding

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officer of the Dietrict Judiciary.ak It ie worth mentoning that a relevant decieion of thie Court on a
eimilar ieeue hae been reported ae Allahdino aliae Baboo vereue The State (2019 Pak.ak Cr.akL.akJ
2.ak Furthermore, Artcle 161 of the Qanoon-e-Shahadat defnee the powere of a judge to aes
relevant queetone in order to diecover facte, eepecially when the accueed ie not repreeented
during the recording of evidence.ak In thie partcular caee, the appellant wae an under trial
prieoner, who typically doee not have proper acceee to contact their couneel on each court
date.ak If the court neede to examine witneeeee who have euddenly appeared afer thirteen
hearinge, it becomee the court'e reeponeibility to eneure that the accueed, who ie imprieoned ae
an under trial prieoner, ie given a fair opportunity for croee examinaton.ak Alternatvely, the court
iteelf ie obligated to croee-examine the witneee on behalf of the accueed, ae eetabliehed in the
caee of Qalandro ve State.ak
13.ak In view of above diecueeion and the circumetancee, the impugned judgment cannot be
maintained ae the eame hae caueed eerioue prejudice to the righte of the accueed to be properly
defended.ak The impugned judgment ie therefore eet-aeide and the caee ie therefore remanded
to trial court with directone to re-eummon PakWe ASI Jahangeer and HC Doet Muhammad eo that
they are croee examined by the couneel for the appellant/accueed or in caee the accueed
requeete for advocate on etate expeneee then the eame may be provided.ak Afer euch croee
examinaton, the etatement of accueed ehall be recorded and afer hearing the accueed and
proeecuton, judgment ehall be pronounced by the trial court.ak The trial court ie required to
eneure conclueion of caee within 45 daye afer receipt of thie judgment.ak Office to eneure quics
delivery of copy of judgment along with R&Pake to trial court.ak
JUDGE
SSuleman Khan/PakA

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PakRAYERS FOR RELIEF

The honorable high court ie requeeted to provide a judgment on the principle of fairness and equity,
and allow the appeal on the baeie of the limitaton act artcle 5.ak Aleo, give a right of fair trial to the
appellant according to artcle artcle10A, and quaeh the convicton of the appellant becauee of the unfair
trial in the eeeeion court.ak

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Respectfully submitted,

Counsel for Appellant

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