fair trial is the fair, honest and just treatment of a person accused in court, with diligence and adherence to procedural rules by an impartial and unbiased tribunal. Article 10 of the Universal Declaration of Human Rights and Article 6 of the European Convention on Human Rights guarantee and provide for the right to a fair trial.

In Pakistan, the right to a fair trial is provided by Article 10-A of the constitution. This article was added through the 18th Amendment Act in 2010. It states that “a person is entitled to a fair trial and due process for the determination of his civil rights and obligations or in any criminal charge against him.”

The right to a fair trial is the cornerstone of the administration of justice as it ensures that all people, regardless of their guilt or innocence, are entitled to due process of law and are considered innocent until proven guilty through a fair trial. This helps maintain law and order in a society, deter crime and hold criminals accountable for their actions.

Fair trials help establish the truth and are a cornerstone of democracy. They also prevent the abuse of power by government and state officials and are essential for maintaining the rule of law. Without the right to a fair trial, the rule of law could collapse, undermining the principles of justice and equality.

In the criminal justice system, the accused is considered the “favourite child of the law” and is given the benefit of every doubt in the prosecution’s case. This means that they are assumed to be innocent until proven guilty and any doubts in the prosecution’s case are resolved in favour of the accused. Ultimately, the principle of the benefit of the doubt is applied in order to ensure that the accused are is not unfairly convicted.

The prosecution has a basic duty to prove its case beyond reasonable doubt. The benefit of doubt is extended to the accused not as a grace or concession, but as a matter of right. This means that every doubt in the prosecution’s case is resolved in favour of the accused. In our society, the rate of false implication is very high. When a person is guilty of a crime, the complainant may often accuse their entire family. This can have severe negative consequences for the accused, including financial, employment, health and reputation impacts. Overall, the right to a fair trial protects individuals from false accusations and ensures that justice is served.

Delays in the dispensation of justice can affect the right to a fair trial. Contradictory judgments by superior courts on a single point can also impact the right to a fair trial, and the principle of ratio decidendi, which is the rule of law on which a judicial decision is based, and stare decisis, the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again, are often not properly followed.

The provisions of the Law Reports Act 1875 are contradictory to Article 201 of the constitution, which states that the question of law decided, or principles of law enunciated are binding on all subordinate courts. However, Section 3 of the Law Reports Act provides that reported judgements of a bench of the high court are binding on other benches. This contradictory provision can impact the right to a fair trial in Pakistan.

The right to a fair trial can also be affected by the police, when they fail to submit a complete report within the mandatory 14-day period.

The right to a fair trial can also be affected by the conduct of the police, when they fail to submit a complete police report within the mandatory 14-day period under Section 173 of the Criminal Procedure Code 1898. This can delay the progress of a case.

After taking cognizance of an offence by the trial court under Section 190 or 193 of the Criminal Procedure Code 1898, the provisions of Section 265-C or 241-A of the Criminal Procedure Code are often violated. This occurs when the court supplies the accused with the 161 Cr P C statements, but fails to provide the police report, post-mortem report, FSL reports, and other evidence and documents collected by the police during the investigation. This is a violation of the provisions of these sections, which require that all of this information be supplied to the accused.

The statements of prosecution witnesses and other persons familiar with the facts of the case are often recorded with considerable delay due to the uncooperative attitude and conduct of the accused or complainant’s counsel. This is a violation of Article 37(d) of the constitution which emphasises the importance of inexpensive and expeditious justice. Such delay can impact the accused’s right to a timely trial.

After conviction or acquittal, the appeal or revision is decided by the appellate and revisional court with a considerable delay due to the rush of work, shortage of judges, unnecessary adjournments and strikes by the legal fraternity. As a result, a criminal case can take up to seven years for a final decision. This adversely affects both the complainant and the accused party.

Sometimes, an appellate court does not extend the benefit of the doubt to the accused and remands a case to the trial court for a new trial, for the recording of additional evidence, or for the rewriting of the judgement in order to address the lacunae in the prosecution’s case beyond the power provided by Section 423 of the Criminal Procedure Code. These remand orders can have adverse effects on the accused and impact their right to a fair trial.

A case should not be remanded to the trial court for addressing the gaps in the prosecution’s case if those gaps are the result of negligence, carelessness or inefficiency on the part of a party (PLD 2001 SC 384 para no 9). The benefit of any gaps, deficiencies or doubts in the prosecution’s case should be given to the accused as a matter of right. Remanding the case for the purpose of addressing these gaps amounts to giving the prosecution another chance to build its case. This is contrary to the principles of justice and fairness (2019 SCMR 930). The criminal court has no power to order a re-investigation or re-inquiry, or to direct the trial court in its mood or manner (1999 SCMR 828).

In criminal cases, appellate courts sometimes deliver judgments in violation of the mandatory provisions of Section 367(1) of the Criminal Procedure Code, which specifically states that points for determination must be framed by the appellate court and that the judgement must be delivered in light of these points. Such violations can increase the chances of mistakes in the judgement of the appellate court, resulting in injustice to the accused or the complainant. It is important for the legal system to ensure that judges comply with the provisions of Section 367 of the Criminal Procedure Code in order to protect the right to a fair trial and avoid causing injustice.

The writer is an advocate of the Supreme Court of  Pakistan based at Peshawar. He has an LLM in constitutional law