ABDULLAH vs The STATE
This criminal appeal challenges an order passed by the Assistant Sessions Judge, Karachi East, in a case registered under the Sindh Arms Act, 2013. The appellant contended that the trial court erroneously placed the burden of proof on the accused to establish his innocence and failed to ensure the accused was represented by legal counsel, noting that the accused had to cross-examine witnesses himself without any record indicating he waived his right to counsel. Furthermore, it was highlighted that in a related main case concerning the same incident, the accused had been acquitted under Section 265-K of the Code of Criminal Procedure, 1898. The Court observed the procedural irregularity regarding the lack of legal representation and the burden of proof. Consequently, the High Court set aside the impugned order and remanded the case for a fresh decision. The Court directed that the accused be provided an opportunity to be defended by counsel, with the trial court recalling witnesses for cross-examination if necessary, while maintaining the accused's bail status subject to furnishing fresh surety.
- Does a trial court err by placing the burden of proof on an accused to establish his innocence?
- Is a conviction sustainable where the record fails to show the accused was given an opportunity to be represented by a legal practitioner?
- Can a case be remanded to the trial court for a fresh decision if the accused was denied the right to legal counsel during the initial trial?
- Section 23-A(i), Sindh Arms Act 2013
- Section 265-K, Code of Criminal Procedure 1898
ORDER
1. ' AMER RAZA NAQVI, J.---This appeal has been filed against order dated 3-7-2014 passed by V1IIth Assistant Sessions Judge, Karachi East in Sessions case No, 675/2013 registered in consequence of FIR No, 202/2013, under section 23-A(i) Sindh Arms Act, Police Station Zaman Town. Learned counsel for the appellant has pointed out that at the bottom of typed page 3 of the order learned trial Court has observed that accused has failed to produce any proof before the Court regarding his innocence. Learned counsel has also pointed out that accused was not given an opportunity of being defended by a legal practitioner and all the witnesses were cross-examined by accused himself. Nothing has been mentioned in the impugned order that accused opted not to be defended by any defence counsel. Both the learned counsel have pointed out that in the main case in respect of the same incident accused persons were acquitted under section 265-K, Cr.P.C.
2. Within less than three months and no private person turned up in such case although there were private witnesses. In the present case also the only private mashir was not examined. Learned Assistant Prosecutor General submits that case should be remanded back to the trial Court with the direction that in case accused wants to be defended by counsel witnesses should be recalled and advocate should be allowed to cross examine the witnesses. In the above facts and circumstances impugned order is set aside and case is remanded back to the trial Court to decide the same afresh. There will be no need to frame any fresh charge, however advocate of the accused should be mentioned in the impugned order that accused was on bail.
3. He will remain on bail but will be required to furnish fresh surety as according to learned counsel for the appellant surety furnished earlier was withdrawn by the appellant. On furnishing fresh surety in the same terms on which he was earlier granted bail accused shall be released by the trial Court on bail. In the above terms this appeal stands disposed of.