Shahzad Haider Versus State

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.