"Defence struck off' or "defence struck out" is not unknown in the sphere of civil law and ..............

 The phrase "defence struck off' or "defence struck out" is not unknown in the sphere of civil law and indeed it finds a place in Order XI Rule 21 of the Code of Civil Procedure. However, this concept is alien to the proceedings under the Code of Criminal Procedure. However, at this stage, we do not want to delve into detail of this aspect of the matter as to whether the proceedings under the Illegal Dispossession Act, 2005 are in the nature of a complaint and are different from the proceedings carried out pursuant to registration of FIR. Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 speaks about right of fair trial and due process both in civil as also in criminal proceedings. Thus the right to fair trial is a fundamental and Constitutional right belonging to every citizen of Pakistan. While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment are the essential attributes of criminal justice system based on the Constitutional command. According to Merriam-Webster, the word ‘evidence’ means “material that is presented to a court of law to help find the truth about something”. The statements of witnesses and cross-examination is a vital part of that material, which form part of evidence, therefore, in absence of such an important piece of evidence, the Court could not come to a just and fair conclusion. Criminal trial of an accused must be conducted with utmost fairness. Fundamental right of fair trial which the Constitution guaranteed is violated if any accused is deprived of the opportunity to cross-examine a witness deposing against him.” Even if we deny the right of cross-examination to the petitioners, in appeal the matter would again be remanded and, therefore, would further linger on the proceedings. It would, therefore, be in the interest of justice, if the petitioners are given the opportunity to cross-examine PWs and by doing this no prejudice would be caused to the respondents. Consequently, we convert this petition into appeal, allow it and set aside the impugned judgment.

Criminal Petition No.1091/2021

Sher Hassan and others vs Gul Hassan Khan and others