PLJ 2022 Cr.C. 1328
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Pakistan Penal Code, (XLV of 1860), Ss. 302/324/337F3/34--Constitution of Pakistan, 1973, Art. 10-A--Summoning of record of Rescue 15 along with its custodian--Rectification of clerical mistake--The fair trial is defined as trial and judicial decision between the litigants in a competent, independent, impartial Court with guarantee and observance of the legal rights of the litigants during the various stages of the proceedings--Rights of the accused are fully guaranteed under Islamic law and that Islamic law has provided excellent procedural requirement to guarantee the rights of the accused--Access to justice includes fair and expeditious trial--Accused is favourite child of law and must be provided fair and adequate opportunity--Trial Court shall provide an opportunity of producing evidence to the petitioner in his defence--Petition is allowed. [Pp. 1331, 1332, 1333 & 1334] A, B, C, D & E
PLD 2020 SC 334; NLR 1981 SCJ 388; Verse 25 of Surah Al-Hadeed; Verse 58 of Surah Al-Nisa; Verse 42 of Surah Al-Maida ref.
Ms. Bushra Qamar Advocate for Petitioner
Ms. Tahira Parveen Additional Prosecutor General for State.
Malik Muhammad Imtiaz Mahl, Advocate for Respondent.
Date of hearing: 15.4.2022.
PLJ 2022 Cr.C. 1328
[Lahore High Court, Lahore]
Present: Sardar Ahmed Naeem, J.
SAFDAR HAYAT--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 13763 of 2022, decided on 15.4.2022.
Order
The petitioner is facing trial along-with his co-accused for committing Qat-i-Amd of Waqar Aslam (deceased) and murderous assault on Khaliq Dad, injured PW.
2. The incident was reported, on 17.7.2020, at Police Station Saddar, Sargodha vide FIR No. 371/2020 for offences under Section 302,324,337-F(iii) 34, PPC.
3. The investigating Agency did not confirm the participation of one of the accused, namely, Muhammad Asim and mentioned his name being innocent in the report submitted under Section 173, Cr.P.C. Feeling aggrieved, Respondent No. 2 filed a private complaint against the petitioner and two others, admitted to regular hearing. During trial, the prosecution evidence has been recorded. The statement of the petitioner-accused was also recorded under Section 342, Cr.P.C. The case was fixed for final arguments. At this stage, the petitioner filed two applications, on 21.2.2022, one to rectify clerical mistake and the other for summoning record of rescue 15 along-with its custodian.
4. The learned trial Court vide orders dated 01.3.2022 dismissed the applications. The petitioner has called in question the legality/constitutionality of the above orders.
5. Learned counsel for the petitioner submitted that the petitioner never declined to produce the evidence while responding to question No. 18 of his statement recorded under Section 342, Cr.P.C., but “no” was imprinted in the said statement out of inadvertence; that justice should not only be done but manifestly seen to have been done; that the principle of natural justice has been ignored by the learned trial Court and above all, fair trial is the fundamental right of the petitioner. Added that the trend of cross examination and answer to question No. 16 makes it clear that request of the petitioner was not afterthought. Concluding her arguments, learned counsel for the petitioner submitted that if the impugned orders are not set aside, he shall be adversely effected.
6. On the other hand, learned counsel for the Respondent No. 4 maintained the validity of the impugned orders and submitted that the above applications were moved by the petitioner just to prolong the trial and once an accused decline to produce such evidence, he cannot be permitted except for valid reasons and if such latitude is permitted, trial of criminal case would become chaotic. It was argued that the learned trial Court has exercised its discretion in appropriate and lawful manner, thus, this petition is liable to be dismissed. To augment his contentions, learned referred to Ilyas Ahmad versus The State (NLR 1981 SCJ 388).
7. I have given anxious considerations to the arguments advanced by the learned counsel for the parties and have perused the record.
8. A review of the record demonstrates that the statement of the petitioner under Section 342, Cr.P.C. was recorded in the above mentioned case on 10.2.2022. Responding to question No. 18, the petitioner declined to produce the evidence in his defence as reflected from his statement recorded under Section 342, Cr.P.C. However, on 21.2.2022 just after eleven days, two applications were filed by the petitioner seeking rectification of record i.e. answer to question No. 18 and the other for summoning the record of rescue “15” along-with its custodian. It is reflected by para-2 of the application filed under Section 540, Cr.P.C. by the petitioner that on 16.7.2020 a phone call was made from cell phone No. 0321-6060291 to help line rescue “15” as the petitioner along-with his son was saved by the police, which brought them to police station. In para-4, it was mentioned that the petitioner never declined to produce evidence in defence but as his co-accused were not inclined to produce the defence, thus, a similar answer was imprinted in his statement out of inadvertence.
9. In any case, the trial is likely to be concluded very soon as the prosecution has closed its evidence and even the statement of the accused has been recorded and now it is to be seen if at this stage, the petitioner-accused can be permitted to move such like applications. To ascertain this aspect, the trend of cross examination and response to question No. 16 of the statement got recorded by the petitioner under Section 342, Cr.P.C. can be helpful. Along-with the instant petition, certified copies of the statements of Respondent No. 2 i.e. Muhammad Aslam son of Atta Muhammad (complainant-PW.5) and Khlaiq Dad son of Sahib Khan (PW.6) have been appended to. Their statements revealed that during their cross examination, they have denied the following suggestions:
PW.5 (Muhammad Aslam)
“None of the PWs have made any call to the rescue 15. I do not know that if call to rescue 15 was made by Muhammad Asim accused”
PW.6 (Khaliq Dad)
“I did not make any call on rescue 15 at the time of occurrence and after the occurrence about the occurrence. Neither the complainant nor any of the PW made call rescue 15 in my presence. It is not in my knowledge that the accused persons made call on rescue 15 that PWs have attached on their house”
10. A detailed answer of the petitioner against question No. 16 of his statement recorded under Section 342, Cr.P.C. suggested attack by the complainant party on the accused and making of phone call to rescue 15 by son of the petitioner. Thus, it can safely be concluded that making of phone call to rescue 15 was not categorically denied by Khaliq Dad (PW.6) and same was the plea raised by the petitioner in his statement. Now it is to be resolved, if in the above circumstances, the dismissal of the applications filed by the petitioner amounts to denial of fair trial.
11. The right to a fair trial is enshrined in all important Human Rights Declarations from the Great Charter of England(1215) to the French Declaration of Human Rights and Citizenship (1789) and the Declaration of Human Rights. Among the documents that examine this right in more detail are the international covenant on basic principles on the independence of judiciary and regional documents such as the European Convention on Human Rights (1952), the American Convention on Human Rights (1969) and so on. Above all, Constitution of Islamic Republic of Pakistan, 1973 prescribes more safeguards against depriving a person of his “life or liberty” and with regard to arrest and detention, which includes the “right to consult and be defended by legal practitioner of his choice”. The constitution also mandates a fair trial and due process.
12. The fair trial is defined as trial and judicial decision between the litigants in a competent, independent, impartial Court with guarantee and observance of the legal rights of the litigants during the various stages of the proceedings.
The principles of fair trial in jurisprudence means what the judge needs to observe in relation to the litigants so that the trial is fair according to what society expects from justice.
13. The principles of fair trial lead to the establishment of the trial process in its correct and true direction, and the main element in this process, namely the judge on the one hand and the litigant on the other, as living and dynamic factors in the process, can lead to fair trial.
14. As to criminal law, the Quran, the most important source of Islamic law, contains about 30 verses concerning this topic and almost all of them referred to substantive criminal law, not to criminal procedure. The administration of justice is the ultimate goal of the trial. Many Verses and Hadiths emphasized this principle. Verse 25 of Surah Al-Hadeed says about this principle:
“indeed, we sent our messengers with clear proofs and signs and we sent down with them the book (Quran) to guide mankind so that the people may rise up to establish justice”.
15. Verse 58 of Surah Al-Nisa states:
“when you judge among the people, you should rule with justice”.
The judicial justice system of Islam includes not only Muslims but all human beings. The survival of Islamic society depends on it and efficiency of the system depends to it with a large extent. In the Quran God says to his prophet (Peace Be Upon Him) “whenever you want to judge among non Muslims you must observe moderation and equality between them” (Al-Maida 42).
Since a fair trial is recognized as one of the general principle in the doctrine of Islamic law, respect for the rights of the accused should be one of the manifestations of justice.
Also in the Sunnah, there are few traditions that can be regarded as statements in the criminal proceedings. Islamic criminal law consists of three categories of crimes. Two of them are Hadd and Qisas crimes and the crimes of the third group the “Tazir” crimes were left to the discretion of the ruler, who was, however, bound to the general principles of Islam. Whereas, provisions regarding crimes of Hadd and Qisas were discussed again and again by the scholars and Islamic law, Tazir crimes as well as most parts of the criminal procedure were regarded as a matter of administration and left to the authority, therefore, relatively seldom discussed by the jurists.
16. Islamic criminal justice system provides fundamental rights to the accused. Islamic criminal law presumes the accused innocent unless proven guilty. In addition, Islamic Criminal Justice System has provided many safeguards to the accused that are always upheld during detention, investigation, trial and post trial. These rights are:
(i) Right of each person to protection of life, honour, liberty and property;
(ii) The right to due process of law;
(iii) The right to fair and public trial before an impartial judge;
(iv) Confrontation and cross-examination of an accuser’s witness;
(v) Freedom from compulsory self incrimination;
(vi) The protection against arbitrariness and detention; and
(vii) Prompt judicial determination and right of appeal.
Thus, Islamic criminal law has also provided basic guarantees to the accused persons. First, he should not be charged under the principle of legality. If charged, he has many defences specially under the doctrine of uncertainty (Shuba) in case of Hadood and homicide. The trial is to be fair and the cross-examination of accuser’s is a must. The accused cannot be incriminated by an accused during the trial or during the investigation. Upholding these principles means that rights of the accused are fully guaranteed under Islamic law and that Islamic law has provided excellent procedural requirement to guarantee the rights of the accused.
17. The right to fair trial by way of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 was given to the accused by way of the Constitution (18th Amendment Act), 2010. The meanings of the words of the constitution are clear, every one is to be given a fair trial as we have discussed, the concept of a fair trial is more or less synonymous with the concept of presumption of innocence. This is decipherable by the vast amount of treaty language that treats true concepts together. Further more, even an average, “man on the street” knows that in order for a criminal trial to be fair their needs to be a presumption of innocence.
Access to justice includes fair and expeditious trial. Right to fair hearing finds its roots from the maxim audi alteram partem meaning that the conviction should be made after hearing. The expression purely infers that a person must be awarded an opportunity of hearing for the purpose to defend him. In administrative side, this principle has secured right of fair play and justice to an accused person. In a constitutional system, the presumption of innocence seeks to maintain the rule of law and the legitimacy of the criminal law by making sure that the people do not loose faith in the judicial system. In a recent case reported as Muhammad Bashir versus Rukhsar and others (PLD 2020 SC 334), the apex Court observed:
5. The Constitution of the Islamic Republic of Pakistan prescribes important safeguards against depriving a person of his “life or liberty” and with regard to arrest and detention, which includes the “right to consult and be defended by a legal practitioner of his choice”. The Constitution also mandates a “fair trial and due process”. A person arrested for an offence (1) must be informed of the grounds of his arrest; (2) must be permitted to consult with and be defended by a lawyer; (3)must be provided with the information of the offence he is charged for; (4) must be provided with an opportunity to cross-examine witnesses who depose against him; (5) must be given an opportunity to explain the circumstances disclosed in evidence against him; and (6) must also be provided an opportunity to produce evidence in his defence. There are also necessary ingredients to ensure the fairness of a trial.
18. Reverting to the facts of this case, the petitioner is the principal accused and has been indicted for the charge of Qatl-i-Amd. He is facing trial and has participated in the proceedings. The prosecution has closed its evidence and statement of petitioner under Section 342, Cr.P.C. has been recorded, thus, without touching this aspect that answer to question No. 18 was not correctly written, suffice it to observe that the accused is favourite child of law and must be provided fair and adequate opportunity, of course, permissible under the law to disprove the charge. As mentioned above, the plea raised by the petitioner during trial find mentioned in details under question No. 16 as well as the trend of cross-examination referred to above. I have also no doubt that the plea of summoning record of rescue 15 was afterthought. The applications were not filed by the petitioner with
inordinate delay but the trial Court without considering all the above said aspects proceeded to dismiss the above applications without any cogent/valid reasons which has caused serious prejudice to the petitioner-accused, thus, the impugned orders cannot be sustained and liable to be set aside. The judgment of the apex Court referred to by the learned counsel is of no help to complainant as Article 10-A was brought in the Constitution of Islamic Republic of Pakistan, 1973 in the year 2010 by way of the Constitution (18th Amendment Act), 2010.
Accordingly, it is necessary for the Court to adhere to the rights and guarantees recognized in the proceedings for a fair trial, and to make every effort to improve its quantitative and qualitative level within the justice system.
19. For the foregoing reasons, this petition is allowed and the orders dated 01.3.2022 are hereby set aside. The learned trial Court shall provide an opportunity of producing evidence to the petitioner in his defence.
20. This case was registered on 17.7.2020. The trial in this case is almost complete, thus, the learned trial Court is directed to conclude the trial at the earliest preferably within one month after the receipt of this order.
(K.Q.B.) Petition allowed
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