IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CRIMINAL PETITION NO. 1091 OF 2021 
(On appeal against the judgment dated 14.06.2021 
passed by the Peshawar High Court, Peshawar in Cr. 
Revision No. 307-P/2019) 
 
Sher Hassan and others 
 
 
… Petitioners 
Versus 
Gul Hassan Khan and others 
 
 
…Respondent(s) 
 
For the Petitioners: 
Mr. Altaf Khan, ASC 
 
 
For Respondents (1 & 3): Mr. Imtiaz Ali, ASC 
 
 
Date of Hearing: 
06.01.2022 
 
ORDER 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant 
petition under Article 185(3) of the Constitution of Islamic Republic of 
Pakistan, 1973, the petitioners have called in question the vires of the 
judgment dated 14.06.2021 passed by the learned Peshawar High 
Court, Peshawar whereby the Criminal Revision filed by the petitioners 
was dismissed and the orders of the learned Courts below were 
upheld by which the right of the petitioners to cross-examine PWs 3–5 
was struck down. 
2. 
 
Briefly stated the facts of the matter are that the 
respondents filed a complaint against the petitioners under Section 3 of 
Illegal Dispossession Act, 2005 wherein it was alleged that the 
petitioners have illegally dispossessed them from the property 
measuring 29 marlas, situated near Government College, Peshawar. 
Pursuant to the report of the SHO, the learned Trial Court dismissed 
the complaint vide order dated 25.03.2014. The respondents filed Writ 
Petition No. 1419-P/2014 against the said order, which was allowed 
vide order dated 16.03.2017 and the case was remanded back to the 
learned Trial Court to proceed with the complaint after affording an 
opportunity of hearing to both the parties. Thereafter, a formal charge 
Criminal Petition No. 1091/2021 
-: 2 :-
was framed against the petitioners and the respondents were directed 
to adduce their evidence. During the course of trial, statements of PW-1 
and PW-2 were recorded whereas the examination-in-chief of PWs 3 to 
PW-5 was recorded. However, these three witnesses could not be 
cross-examined by the petitioners and ultimately their right of cross-
examination was struck down vide order dated 25.06.2019 passed by 
the learned Trial Court. Petitioners then filed review petition but it 
stood dismissed vide order dated 09.12.2019. Being aggrieved, the 
petitioners filed Civil Revision before the learned Peshawar High Court 
but it also met the same fate vide impugned judgment. Hence, this 
petition seeking leave to appeal.     
3. 
 
 Learned counsel for the petitioners contends that the 
absence of the counsel for the petitioners before the Trial Court to 
cross-examine PWs 3–5 was due to his professional engagements and 
the same was not deliberate or intentional. Contends that there is no 
concept of striking down the right of cross-examination in the criminal 
jurisprudence and not affording the petitioners the opportunity to cross-
examine PWs 3–5 would amount to condemning them unheard and if 
the petitioners are allowed to cross-examine the said witnesses, the 
Trial Court would be in a better position to decide the case on merits. 
4. 
 
On the other hand, learned counsel for the respondents 
has defended the impugned judgment by contending that on eight 
occasions the petitioners’ counsel was not present before the Trial 
Court, therefore, keeping in view their conduct their right to cross-
examine PWs 3–5 was rightly struck down by the courts below.  
5. 
 
We have heard the learned counsel for the parties at some 
length and have gone through the case file.  
 
 
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, 
Criminal Petition No. 1091/2021 
-: 3 :-
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. In Muhammad Bashir Vs. Rukhsar 
(PLD 2020 SC 334) this Court has held that “right to cross-examine is 
the right of the adverse party which right he/she may forego but one 
which he/she cannot be deprived of. 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 3–5 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. The learned Trial 
Court is directed to afford an opportunity to cross-examine PWs 3–5 to 
the petitioners and complete this exercise within a period of one month 
of the next date of hearing before it.  
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
6th of January, 2022 
Approved For Reporting 
Khurram