Right of fair trial has been denied to appellant due to following reasons: -

  Non-supply of copy of DVD/CD to appellant in terms of Section 265-C, Cr.P.C.

 Non-displaying the videos and photos during the statements of any of the prosecution witnesses.

 Non-displaying the videos and photos while examining the appellant under Section 342 Cr.P.C.

Supply of copies of evidence to an accused is a valuable right. On omission of Chapter XXIII CrPC under the Law Reforms Ordinance, 1972 (XII of 1972) as there was a vacuum therefore Chapter XXII-A Cr.P.C was inserted on the strength of same Ordinance, which was further substituted by way of Code of Criminal Procedure (Amendment) Act, 1976 (XLIV of 1976) while describing a comprehensive procedure indicating all the steps in a criminal trial before High Courts and Courts of Session. Besides many other safeguards an important right of accused to receive the copies of documents in terms of Section 265-C before framing of charge and recording of evidence was protected.

Right to know by accused the case against him is based on the principles of natural justice therefore the wisdom behind the provisions is obvious that before commencement of trial the accused must know that what the evidence against him prosecution intends to produce so he has to be in a position to defend him properly therefore the provisions of Section 265-C, Cr.P.C has to be construed liberally that the copies of every evidence oral or documentary should be made available to him. Only the complete and fair disclosure of entire evidence to be used against accused can ensure a free and transparent trial. The scenario will not change even if an accused has himself conceded to, the omission to apply with the provisions of Section 265C.

Article 164 after insertion of its proviso in the Qanoon-e-Shahadat Order, 1984 (P.O No. X of 1984), empowers the court to allow any evidence to be produced that becomes available because of modern devices and techniques and conviction on the basis thereof is lawful. Therefore provisions of Section 265C, Cr.P.C cannot be read in isolation and now the courts are under a statutory duty to supply the copies of any such document at the relevant stage.

As mentioned earlier that the supply of copies in terms of Section 265-C, Cr.P.C is not mere a formality so prosecution cannot be allowed to give a surprise to accused by producing an evidence for which he had no earlier notice. The court seized with the trial is also under obligation to ensure that none of such provisions be compromised and no right is to be denied to accused.

The deviation from said duty shall render the conviction invalid.” settled principles governing for examination of accused under Section 342 Cr.P.C are as under: -

i. The failure of the trial court to question the accused about incriminating material will amount to an infringement of the provisions of Section 342 Cr.P.C.

ii. Where the circumstances appearing in evidence against accused are not put and his explanation is not taken thereupon, it cannot be said that the purpose of Section 342 Cr.P.C has been fulfilled.

iii. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate him.

v. The court should not only point out to the accused the circumstances appearing in the evidence which require explanation but it must out of fairness to the accused exercise that power in such a way that the accused may know what points in the opinion of the court require explanation and failure or refusal on the part of the accused to give the explanation will entitle the court to draw an inference against him.

iv. The word ‘generally’ does not limit the nature of the questioning to one or mere questions of a general nature relating to the case, but it means that the questions should relate to the whole case generally, and should not be limited to any particular part or parts of it.

vi. The word ‘generally’ does not mean that the accused cannot be subjected to a detailed examination by the court.

vii. The real object of Section 342 Cr.P.C is not to subject the accused to a detailed cross examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which is likely to influence the mind of the Judge in arriving at a conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any.

viii. Section 342 Cr.P.C is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside.

ix. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply.

It was the duty of learned trial Judge to be vigilant while supplying the copies of documents to appellant under Section 265-C, Cr.P.C, to display the videos and photos during the statement of the victim of the case and also to show the same to appellant while examining him under Section 342 Cr.P.C, hence prosecution as a whole cannot be stated to be at fault. Therefore the case is liable to be remanded back with the following directions: -

i. The learned trial court shall supply the copy of DVD/CD to appellant allegedly having videos

ii. and photographs retrieved from mobile phones by PFSA. After receiving the copy of DVD/CD, the appellant, if desires, shall be allowed to recall any of the prosecution witnesses already examined for cross-examination to this extent only.

iii. The appellant shall be examined again under Section 342 Cr.P.C where he shall be questioned on every incriminating piece of evidence and shall also be shown the videos and photos enabling him to explain the same.

iv. As appellant has already been acquitted from the offences under Sections 367A/377 PPC and no exception has been taken thereto by the rivals therefore the trial of appellant shall be confined to under Sections 292-A/292-C PPC only.

Criminal Appeal No. 395 of 2022

Usman Ali Vs. The State & another
Date of Hearing 13.07.2022