2026 P Cr. L J 577


 2026 P Cr. L J 577

[Lahore]

Before Abher Gul Khan, J

SHAHZAD HAIDER---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Revision No. 37605 of 2025, heard on 25th June, 2025.

Penal Code (XLV of 1860)---

----Ss. 302(b), 392 & 411---Criminal Procedure Code (V of 1898),

S.340(1)---High Court (Lahore) Rules and Orders, Vol. III, Chapter 24-

C---Qatl-i-amd, robbery, dishonestly receiving or retaining stolen

property---Striking down right of cross-examination---Legality---

Petitioner s right of cross-examination of two prosecution witnesses

was closed---Validity---Perusal of record revealed that petitioner was

booked in the present case whereby charge against him was framed

and subsequently the prosecution was directed to lead its evidence---

On 16.05.2025 due to the non- appearance of the petitioner before the

Trial Court not only his right to cross-examine the prosecution

witness was closed but his non-bailable warrants of arrest were also

issued---Thereafter on 14.06.2025 right of the petitioner to cross-

examine another prosecution witness was also closed---Trial Court

did not consider it appropriate to appoint State Counsel to cross-

examine those two material witnesses nor put any question to them

and passed the impugned order without any legal justificationwhile

ignoring the fact that accused was facing charge of capital offence---

Article 10 of the Constitution guaranteed legal aid to an arrested

person---Said constitutional right had been protected by the codified

law---Section 340(1), Cr.P.C., statutorily recognized the right of an

accused to be defended---Such right of an accused of an offence

entailing capital punishment was further elaborated under Chapter

24-C of Volume-III of the High Court (Lahore) Rules and Orders---Said

provisions were crystal clear that a person arrested had a

constitutional right to the services of a counsel, therefore, he must be

given reasonable opportunity to engage a counsel and the counsel

engaged must be given reasonable opportunity to defend him---Basic

principle underlying this exercise appeared to be that no one should

be condemned unheard---Impugned orders prima facie appeared to

be passed in sheer violation of law---Thus, the orders dated

16.05.2025 and 14.06.2025 passed by Trial Court were not sustainable

in the eye of law, therefore, same were set- aside---As a sequel thereof, petitioner was afforded reasonable opportunity to cross-examine both

the prosecution witnesses---If counsel of petitioner did not appear to

cross-examine the witnesses, the Trial Court shall be at liberty to

appoint counsel at State expenses to meet the requirement of law---

Criminal revision was allowed, accordingly.

Muhammad Yaseen alias Mithou and another v. The State 2010

PCr.LJ 1253 rel.

Malik Muhammad Akbar Awan for Petitioner.

Ms. Sumaira Shafi, DDPP for the State.

Date of hearing: 25th June, 2025.

JUDGMENT

ABHER GUL KHAN, J.---Through this revision petition, petitioner

has challenged the vires of orders dated 16.05.2025 and 14.06.2025

passed by learned Additional Sessions Judge, Sargodha whereby the

right of the petitioner to cross-examine PWs.16 and 17 was closed.

2. Arguments heard and record perused.

3. Perusal of record reveals that petitioner was booked in case F.I.R.

No. 251/2023 for the offences under sections 302, 392 and 411 P.P.C

whereby charge against him was framed and subsequently the

prosecution was directed to lead its evidence. On 16.05.2025 due to the

non-appearance of the petitioner before the trial court not only his

right to cross-examine the PW.16 was closed but his non-bailable

warrants of arrest were also issued. Thereafter on 14.06.2025 right of

the petitioner to cross-examine PW.17 was also closed. It is worth

mentioning that the learned trial Court also did not consider it

appropriate to appoint State counsel to cross-examine these two

material witnesses nor put any question to them and passed the

impugned order without any legal justification while ignoring the fact

that accused is facing charge of capital offence. It is equally important

to mention here that Article 10 of the Constitution of Islamic Republic

of Pakistan guarantees legal aid to an arrested person. It says:

"(1) No person who is arrested shall be detained in custody without

being informed, as soon as may be of the grounds for such arrest

nor shall he be denied the right of consult and be defended by a

legal practitioner of his choice."

This constitutional right has been protected by the codified law.

Section 340(1), Cr.P.C. statutorily recognizes the right of an accused to

be defended. The said provision of law reads as under:

"Any person accused of an offence 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."

This right of an accused of an offence entailing capital punishment

is further elaborated under Chapter 24-C of Volume-III of the Rules and

Orders of the Lahore High Court, Lahore. Rule (1) of the said Rules

reads as under:

"If the accused is unrepresented in a Sessions case and cannot

afford to engage a counsel the Sessions Judge shall make

arrangement to employ a counsel at Government expense.

Counsel in such cases should be appointed well in time to enable

him to study the documents mentioned in section 265-C of the

Code of Criminal Procedure."

4. The above provisions are crystal clear that a person arrested has

a constitutional right to the services of a counsel, therefore, he must be

given reasonable opportunity to engage a counsel and the counsel

engaged must be given reasonable opportunity to defend him. The

basic principle underlying this exercise appears to be that no one

should be condemned unheard. Reference in this regard can be made

to case law reported as Muhammad Yaseen alias Mithou and another

v. The State 2010 PCr.LJ 1253 [Lahore]. When When seen in above

context, the orders prima facie appears to be passed in sheer violation

of law. On the basis of above said discussion, this Court has arrived at

the conclusion that orders dated 16.05.2025 and 14.06.2025 passed by

learned Sessions Judge, Sargodha are not sustainable in the eye of law,

therefore, same are hereby set-aside. As a sequel thereof, instant

criminal revision is allowed and petitioner is afforded reasonable

opportunity to cross-examine both the PWs. If his counsel did not

appear to cross-examine the witnesses the trial court shall be at liberty

to appoint counsel at State expenses to meet the requirement of law.

JK/S-54/L Revision allowed.

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