Summary: (a) Code of Criminal Procedure (V of 1898) ----S. 353---Recording of evidence---Presence of accused---Fair opportunity of defence---General rule---Held, ordinarily all evidence in trial is to be recorded in presence of accused or his pleader; underlying purpose is to ensure fair opportunity of cross-examination and to prevent prejudice arising from absence. (b) Qanun-e-Shahadat Order, 1984 ----Art. 47---Previous testimony---Admissibility in subsequent proceedings---Conditions---Complainant Abdul Rehman deposed in earlier trial arising out of same incident---He was cross-examined by defence in that trial---Accused Riffat Hussain was absconding and did not face trial at that stage---Later, upon arrest and trial of absconding accused, complainant had died---Held, where witness is dead and testimony was recorded in earlier judicial proceeding relating to same occurrence, and defence had right and opportunity of cross-examination in earlier proceeding, such deposition is admissible and can be read in evidence in subsequent trial---Earlier deposition satisfied statutory conditions of Art.47 and could be relied upon along with later ocular testimony. (c) Code of Criminal Procedure (V of 1898) ----S. 512---Recording of evidence in absence of absconding accused---Use of such deposition after arrest---Principle---Held, law provides mechanism to preserve prosecution evidence where accused has absconded and there is no immediate prospect of arrest---Upon arrest, such deposition may be used if deponent is dead/incapable/unavailable without unreasonable delay or expense---Absconding accused cannot claim advantage from own wrongful conduct; implied waiver of right to contemporaneous cross-examination during period of abscondence recognised. (d) Criminal jurisprudence ----Abscondence---Effect on procedural protections---Maxim “Nullus commodum capere potest de injuria sua propria”---Held, accused who deliberately evades process of law cannot later insist on strict procedural advantage founded on his own abscondence; technical objections regarding non-availability of direct cross-examination were not sustainable where statutory conditions for use of prior testimony were met. (e) Qanun-e-Shahadat Order, 1984 ----Art. 131---Admissibility---Court’s authority---Held, trial judge is empowered to determine admissibility; where substantive statutory requirements are fulfilled, minor technical irregularities regarding formal transposition under S.512 Cr.P.C. do not defeat admissibility or probative evaluation of earlier testimony. (f) Criminal trial ----Prompt FIR---Effect---FIR lodged within about one and a half hours---Held, promptness excluded deliberation and consultation and lent assurance to prosecution version and nomination of accused. (g) Penal Code (XLV of 1860) ----Murder---Ocular and medical corroboration---Accused specifically nominated---Consistent role attribution---Ocular account comprised of complainant’s earlier deposition and eyewitness Muhammad Ishaq’s later testimony---Both consistent with FIR and confidence inspiring---Held, ocular account was natural, straightforward and free from material contradictions or inherent improbabilities---Medical evidence supported nature, number and location of injuries and cause of death---Recovery of weapon and prolonged abscondence provided further corroboration when read with other evidence---Prosecution proved case beyond reasonable doubt; conviction maintained. (h) Sentence ----Life imprisonment on two counts---Concurrency---High Court converted death sentence into life imprisonment on two counts---Supreme Court declined interference with conversion---Held, no ground made out to enhance sentence; discretion exercised by High Court neither arbitrary nor perverse---However, life sentences on two counts directed to run concurrently. Cited Cases: • Miran v. The State 2013 P Cr. L J 244 • Arbab Tasleem v. The State PLD 2010 SC 642 • Ahmad Ali v. Ebrar Khan etc. Cr.R No. 07-P/2021 • The State v. Ali Zaman 1981 PCr.LJ 194 • Pakistan International Freight Forwarders Association v. Province of Sindh 2017 PTD 1 Disposition: Crl.P.L.A.1431/2020 was dismissed; conviction and life imprisonment awarded to petitioner Riffat Hussain were maintained; life sentences on two counts were ordered to run concurrently. Crl.P.L.A.1487/2020 seeking enhancement was dismissed and leave was refused; no interference warranted with High Court’s conversion of death sentence into life imprisonment. (Short order dated 25.11.2025; reasons recorded in judgment).

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S.497(1), third proviso---Penal Code (XLV of 1860), Ss.324, 109, 148 & 149---Post-arrest bail---Statutory delay in conclusion of trial---Offences not punishable with death---Accused continuously detained for more than one year---Computation of statutory period---Petitioners were arrested on 17.03.2025 and trial had not concluded despite lapse of more than one year---Where offence did not entail punishment of death, accused was required to demonstrate continuous detention for one year---Statutory period was to be calculated from date of arrest and not from date of indictment or any subsequent stage of trial---Once prescribed period had elapsed without conclusion of trial, statutory right to release on bail ripened in favour of accused, subject to exceptions provided by law---Such right was time-based and its accrual did not remain within discretion of Court once statutory conditions stood fulfilled. Mehran v. Ubaid Ullah (PLD 2024 SC 843); Adnan Shafai v. The State and another (2024 SCMR 1543); Muhammad Umer Shahzad v. The State and others (2023 SCMR 1450); Syeda Ayesha Subhani v. The State (PLD 2023 SC 648); Nadeem Samson v. The State (PLD 2022 SC 112); Shakeel Shah v. The State (2022 SCMR 1) and Saleem Khan v. The State (PLD 2020 SC 356) rel. (b) Criminal Procedure Code (V of 1898)--- ----S.497(1), third proviso---Constitution of Pakistan, Arts.9, 10-A & 14---Statutory bail---Fundamental rights to liberty, fair trial and dignity---Right to bail arising from statutory delay flowed from constitutional guarantees of liberty, fair trial and dignity---Purpose of third proviso to S.497(1), Cr.P.C. was to ensure expeditious trial of an accused---Recurring statutory right could not be denied merely because an earlier post-arrest bail petition had been dismissed on merits---Denial of such right would confer upon prosecution an unfettered licence to delay trial indefinitely and leave an undertrial prisoner confined for an indeterminate period at the mercy of prosecution---Such consequence would be antithetical to constitutional scheme and would render fundamental rights of accused illusory. Syeda Ayesha Subhani v. The State (PLD 2023 SC 648); Shakeel Shah v. The State (2022 SCMR 1); Nadeem Samson v. The State (PLD 2022 SC 112) and Muhammad Usman v. The State (2024 SCMR 28) rel. (c) Criminal Procedure Code (V of 1898)--- ----S.497(1), third and fourth provisos---Statutory delay---Exceptions to right of bail---Conjoint interpretation---Two exceptions to statutory right of bail were co-existent and were required to be interpreted conjointly---First exception applied where delay in conclusion of trial had been occasioned by an act or omission of accused or any person acting on his behalf---Court could refuse bail where record demonstrated a visibly orchestrated or concerted effort by accused or his counsel to hinder timely conclusion of trial by seeking adjournments without sufficient cause on crucial hearings---Exercise was not a mere mathematical counting of adjournments---Prosecution was required to establish from trial record that accused had deliberately contributed to delay. Ali Akbar v. The State and another (2020 SCMR 1225); Muhammad Usman v. The State and another (2024 SCMR 28); Muhammad Ali v. The State and another (2023 SCMR 1131) and Shakeel Shah v. The State (2022 SCMR 1) rel. (d) Criminal Procedure Code (V of 1898)--- ----S.497(1), fourth proviso---Previously convicted offender---Hardened, desperate or dangerous criminal---Scope---Previous conviction became relevant only where bail was claimed under third proviso to S.497(1), Cr.P.C.---Conviction simpliciter did not debar an accused from statutory bail unless previous conviction related to an offence punishable with death or imprisonment for life---Expression “hardened, desperate or dangerous criminal” referred to a person likely to seriously injure others without regard to consequences and capable of posing a serious threat to society if released---Tentative opinion regarding character of accused was to be formed upon careful consideration of nature of offence, its effect upon victim or society, role attributed to accused, manner of commission and conduct of accused---No such exception was found applicable to petitioners. Moundarr and others v. The State (PLD 1990 SC 934); Shakeel Shah v. The State (2022 SCMR 1) and Allah Wasaya v. The State and others (PLD 2022 SC 541) rel. (e) Criminal Procedure Code (V of 1898)--- ----Ss.205, 353 & 540-A---Recording of prosecution evidence---Absence of co-accused---Personal attendance dispensed with---Presence through pleader---General rule under S.353, Cr.P.C. requiring evidence to be recorded in presence of accused was expressly subject to contrary provisions contained in Code---Sections 205 and 540-A, Cr.P.C. constituted exceptions enabling Court to dispense with personal attendance of accused and permit representation through pleader---Object of S.353, Cr.P.C. was to prevent prejudice and safeguard right to fair trial, but it did not prohibit recording of evidence where personal attendance had lawfully been dispensed with and pleader of accused was present---Presence of pleader sufficiently satisfied statutory requirement in such circumstances---Trial Court had misconstrued S.353, Cr.P.C. by deferring prosecution evidence merely because attendance of certain co-accused had been dispensed with---No legal impediment existed to recording evidence on those dates when their pleaders were present. Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53); Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan (2018 SCMR 1444); Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. (2005 SCMR 1166); Kamaluddin Qureshi v. Ali International Co. (PLD 2009 SC 367) and Agha Shariq Raza v. The State (2025 YLR 808) rel. (f) Criminal Procedure Code (V of 1898)--- ----S.497(1), third proviso---Delay caused by co-accused---Attribution to accused seeking bail---Requirements---Delay caused by one co-accused could not, as a matter of course, be attributed to another accused---For such delay to defeat statutory right of bail, prosecution was required to establish through undisputed material that accused seeking bail was complicit in acts or omissions of co-accused or had acted in aid of a concerted effort to delay trial without sufficient cause---Nothing on record demonstrated that petitioners were complicit with absent co-accused or had acted in aid of them---Delay caused by co-accused could not be allowed to hang as a sword of Damocles over petitioners while deciding their entitlement under third proviso. Muhammad Usman v. The State (2024 SCMR 28) and Shakeel Shah v. The State (2022 SCMR 1) rel. (g) Criminal Procedure Code (V of 1898)--- ----Ss.173 & 497(1), third proviso---Post-arrest bail---Examination of trial order sheets---Delay not attributable to accused---Interim challan was submitted approximately three months after arrest and petitioners were indicted on 24.07.2025---Thereafter case was repeatedly adjourned due to non-attendance of prosecution witnesses, absence of co-accused, dispensation of attendance of certain co-accused and failure to produce petitioners from jail owing to prevailing law and order situation---Petitioners could not be held responsible for such circumstances---Order sheets did not disclose any design, pattern or concerted effort by petitioners to delay conclusion of trial---Prerequisites of third proviso stood fulfilled and neither statutory exception was attracted---Petitioners were entitled to post-arrest bail as a matter of right on ground of statutory delay---Statutory right could not be refused on hyper-technical grounds under discretionary power of Court. Muhammad Usman v. The State (2024 SCMR 28); Adnan Shafai v. The State and another (2024 SCMR 1543); Muhammad Umer Shahzad v. The State and others (2023 SCMR 1450); Syeda Ayesha Subhani v. The State (PLD 2023 SC 648); Nadeem Samson v. The State (PLD 2022 SC 112); Shakeel Shah v. The State (2022 SCMR 1) and Zahid Hussain Shah v. The State (PLD 1995 SC 49) rel. (h) Criminal procedure--- ----Bail order---Tentative observations---Effect upon trial---Observations recorded while deciding bail petitions were purely tentative and confined to determination of entitlement to bail---Such observations were not to prejudice or influence trial proceedings---Trial Court was required to decide case independently and strictly upon evidence produced before it in accordance with law. Disposition--- Both petitions were allowed---Ghulam Rasool and Muhammad Jahangir were admitted to post-arrest bail subject to furnishing bail bonds of PKR 1,000,000 with one surety each in the like amount to the satisfaction of Trial Court---Trial Court was directed to conclude trial expeditiously, on merits of evidence, within two months from receipt of order.

Summary: (a) Criminal Procedure Code (V of 1898): ----S. 353--- Recording of prosecution evidence—Presence of counsel—Scope—Petitioner challenged the order whereby examination-in-chief of seven prosecution witnesses was recorded in absence of defence counsel—Petitioner contended that counsel was engaged before the Supreme Court and had submitted a written request—Held, S. 353 Cr.P.C. mandates that evidence must be recorded in the presence of the accused or his pleader where personal attendance is dispensed with—In the present case, petitioner and co-accused were present during examination-in-chief—Counsel submitted power of attorney and had been appearing throughout trial—No leading questions were alleged, and no specific prejudice was demonstrated—Cross-examination of said witnesses was later conducted by the defence—Held, no illegality or irregularity occurred; petition dismissed. (b) Constitution of Pakistan (1973): ----Art. 10(1)--- Right to counsel—Misapplication of constitutional right—Petitioner argued violation of Art. 10(1) of the Constitution due to absence of counsel during examination-in-chief—Held, right to fair trial and legal representation was not infringed where accused was present, counsel had consistently represented petitioner, and cross-examination was subsequently conducted—Petitioner failed to establish any denial of fair trial or resulting prejudice—Petition dismissed accordingly. (c) Administration of justice: ----Fair trial--- Role of trial court—Recording of evidence not to be treated as ritual—Trial court under duty to ensure presence of accused or their counsel—Where absence of counsel was explained post-facto and no actual harm or unfairness was shown to have resulted, interference by revisional court not warranted—Court directed trial court to conclude proceedings expeditiously within one month—Petition dismissed without costs.

Summary: (a) Criminal Procedure Code (V of 1898) ---- Ss. 205, 353 & 540-A: --- Dispensation of personal attendance of accused – Legal requirements --- Appellant sought exemption from personal appearance before the trial court, which was rejected by both the Tehsil Court of Criminal Jurisdiction and the Shariat Court – Contention that personal appearance of the accused could be dispensed with even in his absence – Held, under S. 205, Cr.P.C., a Magistrate may dispense with the personal attendance of the accused when issuing a summons, but he retains the discretion to require personal appearance at any stage – S. 353, Cr.P.C. requires evidence to be recorded in the presence of the accused unless such attendance is legally exempted – S. 540-A, Cr.P.C. allows exemption from personal attendance during trial when multiple accused are before the court and the judge is satisfied that one or more accused cannot remain present, provided they are represented by a pleader – No legal justification was shown by the appellant for exemption under these provisions – Court cannot pass an order in a vacuum and must assess the nature of allegations and circumstances – Orders of the lower courts were legally sustainable. (b) Criminal Procedure – Judicial discretion in granting exemption from appearance: --- Exemption from appearance not an absolute right – Judicial application of mind required --- Appellant contended that his absence should not have barred the court from considering the application for exemption from personal attendance – Held, while Cr.P.C. provisions empower courts to dispense with personal attendance in suitable cases, this discretion must be exercised judiciously – The trial court must evaluate whether the accused's presence is necessary for fair proceedings – In the present case, no valid legal justification was provided in the exemption application, and no compelling reason was advanced during arguments to justify relief – Application rightly rejected. ----Disposition: Appeal dismissed – Orders of the lower courts upheld. ----Statutory Provisions Discussed: Criminal Procedure Code (V of 1898), Ss. 205, 353, 540-A