Shiraz Ahmad Versus State
This criminal revision petition challenges an order of the Additional Sessions Judge, Lahore, wherein the examination-in-chief of seven prosecution witnesses was recorded in the absence of the petitioner's counsel. The petitioner contended that the absence of counsel during the recording of evidence violated his rights. The core legal question was whether the recording of evidence in the absence of the accused's counsel, despite the accused's presence, constitutes an illegality warranting interference. The Court held that the trial court acted within its authority under Section 353 of the Code of Criminal Procedure, 1898, as the accused were present during the recording. The Court emphasized that recording evidence is a solemn duty, but the petitioner failed to demonstrate any specific prejudice or illegality resulting from the counsel's absence, particularly noting that the counsel subsequently conducted the cross-examination of the witnesses. The Court affirmed that the right to a fair trial was not violated and dismissed the petition, while directing the trial court to conclude proceedings expeditiously.
- Does the recording of prosecution evidence in the absence of the accused's counsel, while the accused is present, violate the law?
- Is the recording of evidence in the absence of counsel per se an illegality if the accused fails to demonstrate prejudice?
- Does Section 353 of the Code of Criminal Procedure 1898 mandate the presence of counsel during the examination-in-chief if the accused is present?
- Section 295-A, Pakistan Penal Code 1860
- Section 295-B, Pakistan Penal Code 1860
- Section 298-C, Pakistan Penal Code 1860
- Section 11, Prevention of Electronic Crimes Act 2016
- Section 353, Code of Criminal Procedure 1898
- Article 10(1), Constitution of the Islamic Republic of Pakistan 1973
Aalia Neelum, C.J .--- This criminal revision is directed against the order dated 03.06.2024, passed by the learned Additional Sessions Judge, Lahore, in which the examination-in-chief of seven prosecution witnesses was recorded without the presence of the petitioner's learned counsel, despite a written request submitted by the petitioner.
2. On 11.06.2024, the instant petition, to the extent of the first three impugned orders, was dismissed as withdrawn, and the instant petition remains alive only to the extent of the impugned order dated 03.06.2024.
3. The facts of the case are that the petitioner, along with others, was facing trial in the case FIR No.C-88 dated 20.06.2019, registered under sections 295-A, 295-B, and 298-C of the Pakistan Penal Code, 1860, read with section 11 of the Prevention of Electronic Crimes Act, 2016 (hereinafter referred to as PECA, 2016), and with the relevant provisions of the law. During the pendency of the trial, on 03.06.2024, the examination-in-chief of seven prosecution witnesses (PWs) was recorded in the presence of the accused persons. After the examination-in-chief of the seven PWs, the accused persons filed an application for the examination-in-chief of the PWs to be recorded in the presence of their counsel, who was not available and was busy in the August Supreme Court in Islamabad, which was declined. Hence, this criminal revision.
4. Arguments advanced by both sides have been heard, and the record has been thoroughly reviewed.
5. Recording of evidence is not a ritual; it is a solemn duty to be performed by the trial court. The entire edifice of the case depends on the recording of the examination-in-chief of the witnesses in presence of the accused. Considering the importance of recording evidence, both the Criminal Procedure Code, 1898, and the Qanun-e-Shahadat Order, 1984, address this aspect of the trial. Section 353 Cr.P.C. is as under:-
Evidence to be taken in presence of accused: Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII, and XXII-A shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
The section allows the trial court to record the evidence if the accused is present or to do so in the presence of their counsel if the court dispenses with the accused's attendance. The learned counsel for the petitioner argues that the petitioner was denied the right to counsel under Article 10(1) of the Constitution of the Islamic Republic of Pakistan, 1973, which is misconceived as the petitioner was represented by his counsel after his arrest. The petitioner's counsel submitted a power of attorney, and the trial court framed a charge against the petitioner and his co-accused on 15.05.2021. The learned counsel for the petitioner submitted that the FIR in the instant case was registered in 2019, and the trial has been pending since 2021. After the charge was framed, the prosecution witnesses were present for about 17 days of the hearing; however, the examination-in-chief could not be recorded, and the right of counsel was given to the petitioner. This fact has not been denied. From the impugned order dated 03.06.2024, it reveals that after recording of the examination-in-chief of seven prosecution witnesses, the petitioner, along with his co-accused, moved the application titled "The State. v. Zaheer Ahmad" with the prayer that examination-in-chief of the PWs be recorded in the presence of their counsel, who is not available and busy in august Supreme Court of Pakistan. Learned counsel for the petitioner is unable to rebut that after recording of the examination-in-chief of seven prosecution witnesses, the application supra was submitted. Learned counsel for the petitioner also remains unable to argue what prejudice was caused to the petitioner, nor referred to any specific portion of evidence in this regard. In the present case, the learned counsel for the petitioner has not contended that leading questions were asked. The petitioner is not denied the right to a fair trial. The learned counsel for respondent No.2 has stated that the petitioner's counsel has conducted cross-examination of the said seven prosecution witnesses, and only one witness remains. For the reasons stated above, this court is satisfied that there has been no ground for acceptance of this petition, as there has been no illegality or irregularity in the order of the learned court below. The order impugned needs no interference in the exercise of inherent powers.
6. Given the above, the petition in hand is dismissed without costs. However, the trial court is directed to proceed with the trial on a daily basis and complete it within one month from the next hearing date. The parties are directed to cooperate with the trial court.
MH/S-38/L Petition dismissed.