The Right to Fair trial is the cornerstone of any democratic society and

constitutes various other rights relating to the treatment of individuals within

the Criminal Justice System. It is important that in order for the full realization
of the right to fair trial, the interests of the accused, victim and society at large
need to be balanced, without prejudice to one another. There are a number of
rights that constitute the wider right to a fair trial. These include:
 Principle of the presumption of innocence: This principle requires that an
accused in a criminal case must be presumed to be innocent until the guilt
of the accused is established beyond reasonable doubt.
 The right to be informed of the nature of charge against the accused.
 Receiving adequate time and facilities to prepare a defence.
 Access to legal counsel.
 Representation by legal counsel.
 Receiving a fair and public hearing by an independent and impartial
tribunal.
 Being tried without undue delay.
 Opportunity to examine prosecution witnesses.
 Receiving free assistance of an interpreter if the accused cannot
understand or speak the language used in court.
 Protection against self-incrimination as well as double-jeopardy.
 Right of a convicted person to review of a sentence by a higher court.

The right to a fair trial has been outlined in different international human rights
treaties, conventions, and declarations.
Contents
1 International Human Rights Safeguards and Standards
2 International Human Rights Safeguards and Standards
3 Constitutional Safeguards
4 Domestic law
4.1 Code of Criminal Procedure 1898 and Qanun-e- Shahadat Order 1984
4.2 Double Jeopardy and Sel-Incrimination
4.3 Confession before Police (Article 38 and 39 QSO, 1984)
4.4 Investigation for Fair Trial Act, 2013
4.5 Anti-Terrorism Act, 1997
4.6 General Clauses Act 1897
4.7 Pakistan Bar Council Free Legal Aid Rules 1999

International Human Rights Safeguards and Standards

It is important that in order for the full realization of the right to fair trial, the
interests of the accused, victim and society at large need to be balanced,
without prejudice to one another.There are a number of rights that constitute
the wider right to a fair trial. These include:
 Principles of the presumption of innocence which require that an accused in
a criminal offence must be presumed to be innocent until he is shown to be
guilty beyond reasonable doubt.
 Being informed of the nature of charge against the accused.
 Receiving adequate time and facilities to prepare his defence.
 Access to legal counsel.
 Representation by legal counsel.
 Receiving a fair and public hearing by an independent and impartial
tribunal.
 Being tried without undue delay.
 Examination of witnesses against him.
 Receiving free assistance of an interpreter if he cannot understand or
speak the language used in court.
 Protection against self-incrimination as well as double-jeopardy.
 Right of a convicted person to a review of a sentence by a higher court.
International Human Rights Safeguards and Standards
The Universal Declaration of Human Rights (UDHR), accepted as customary
international law, outlines the right to a fair trial in Article 10 by stating that
“Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.”
Furthermore, the right to fair trial has also been addressed in Article 14 of the
International Covenant on Civil and Political Rights (ICCPR) which has been
ratified by Pakistan. While Article 14(1) establishes the basic right to a fair
trial, Article 14(2) substantiates the presumption of innocence, and Article
14(3) makes a note of the minimum fair trial guarantees that must be
extended to those accused of criminal charges. These include being informed
of the nature of charge against the accused, getting adequate time and
facilities to prepare a defence, being tried without undue delay, having
witnesses against the accused examined, having free assistance of an
interpreter if the accused cannot understand or speak the language used in
court, and not being compelled to testify against oneself or confess guilt.
Finally, Article 14(5) establishes the right of the convicted person of a review
of a sentence by a higher court, and Article 14(7) prohibits double jeopardy.
However, this principle has its qualifications as summarized by the United
Nations Human Rights Committee (UNHRC), which states that it does not
apply to appeals or any retrials that may be ordered by a Court of Law or the
reversal of guilt or innocence through the presentation of new evidence at a
later stage.
In its General Comment No. 32, the UNHRC has expounded upon the rights
associated with a fair trial. It states that the right to a fair trial must be afforded
to persons of all nationalities, irrespective of whether they are outside the
country of their nationality, or are stateless. Furthermore, the Committee
stated that a person must not be barred from the right to fair trial due to “race,
color, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.” Article 14 of the ICCPR applies
unequivocally to Courts and Tribunals of any nature, be it specialized, civilian
or military. In addition to this, Article 6 of the European Convention of Human
Rights also outlines the right to a fair trial in a similar language as that of the
ICCPR.
This right to a fair trial has also been outlined specifically in relation to children
in Article 40(2) of the Convention on the Rights of the Child, also ratified by
Pakistan. The Committee on the Rights of the Child, in its General Comment
No. 10 on the Convention, has further explained that the atmosphere of the
trial must be tailored in such a way that the child is able to express himself
freely, and that the child’s age be taken into account to modify courtroom
procedures and practices. It states that the child must be given the opportunity
to express his/her views freely, and those views should be given due weight in
accordance with the age and maturity of the child. It places the responsibility
of ensuring that the child understands the charges brought against him/her on
the authorities, including the police, prosecutors and judges.
Other than this, the gravity of offence must be taken into account, particularly
in cases involving death penalty. The Comment further recognizes that in
addition to a lawyer, social workers may also be appointed, provided they are
trained to work with children and possess an understanding of the law.
Moreover, when questioning the child, some appropriate legal or other
representative, as well as parents, if requested, must be present.
International human rights safeguards regarding the right to fair trial also
expound upon the right to complain against ill treatment. The report of the UN
Committee against Torture highlights that States must inform the accused of
their right to complain to or against the authorities. Moreover, the victim also
has the right to complain to courts and non-governmental organizations, and
to select a counsel and a doctor of their choice.
It is also important to note that reparation and redress through compensation
is an obligation under Article 14(6) of the ICCPR, as well as Article 14 of the
Convention Against Torture, for miscarriages of justice that result in wrongful
convictions, and for instances of torture. However, they do not provide for
compensation if the verdict is overturned on appeal.
Constitutional Safeguards
The Constitution of Pakistan, 1973 certainly reflects many of the Articles found
in the UDHR, ICCPR and ICESCR. However, the ‘right to fair trial’ was left
out, in spite of Pakistan pledging to promote and respect human rights and to
take effective measures, both in the national and international spheres, in
1948. It was finally inserted in the Constitution in 2010 through the
18th Amendment as Article 10-A.
In addition to this, fundamental rights constituting the right to a fair trial
including protection against retrospective punishment, double punishment and
self-incrimination have been guaranteed through Articles 12 and 13 of the
Constitution of Pakistan respectively.
▪ Article 12: Protection against Retrospective Punishment
▪ Article 13: Double punishment and self-incrimination
Domestic law
Although the right to a fair trial has been guaranteed explicitly in the
Constitution of Pakistan, this fundamental right can also be found being
protected, or sometimes being derogated from, within domestic legislation.
Code of Criminal Procedure 1898 and Qanun-e- Shahadat Order
1984
A primary corollary of the right to a fair trial is the presumption of innocence in
criminal trials, as codified in Article 117 of QSO, and for the burden of proof to
be placed on the prosecution. Considering the right to have witnesses against
the accused examined, Article 133 provides that cross-examination can take
place after examination-in-chief, while Article 137 allows leading questions to
be asked during cross-examination.
As per Section 540 Cr.P.C. 1898, the Court, at any stage of the proceedings,
on its own or on request of a party could recall a witness for re-examination.
However, such re-examination will be allowed only if it is in the interest of
justice; to get an explanation or to remove any ambiguity with respect to a
fact, raised during cross-examination, thus preventing any prejudice to other
party.
Section 353 of Cr.P.C. 1898 states that the recording of the evidence, and the
examination in chief is to be carried out in the presence of the accused,
otherwise the parties risk vitiating the trial.
However, the Anti-Terrorism Act, 1997, under Section 19(10) allows the Anti-
Terrorism Courts (ATCs) to conduct trials in the absence of the accused: Any
accused person may be tried in his absence if the Anti-Terrorism court is
satisfied that such absence is deliberate and brought about with the view to
obstructing the course of justice.
Additionally, Section 56 of Cr.P.C provides that if the person is being arrested
without warrant, an order in writing, specifying the person to be arrested and
the offence for which the arrest is to be made, shall be delivered to the officer.
The officer so required shall, before making the arrest, notify to the person to
be arrested the substance of the order. Furthermore, Sec. 361 of the Cr.P.C
outlines that whenever any evidence is given in a language not understood by
the accused, and he is present in person, it must be interpreted to him in open
Court in a language understood by him.
Double Jeopardy and Sel-Incrimination
The right to a fair trial also comprises of a prohibition on double jeopardy. Sec.
403 of the Cr.P.C. 1898 bars the prosecution of an accused who has either
been found guilty, or has been acquitted, to not be tried for the same offence
on the existing facts. However, there are exceptions to this prohibition. For
instance, Sec. 403 of the Cr.P.C. is applicable if, inter alia, the accused is to
be tried for the same offence on the basis of either new facts or evidence, or
the same facts are being utilized to charge the accused for an offence on
which he was not acquitted or convicted.
The protection against double jeopardy has also been provided under Article
13 of the constitution; whereas, Article 13(b) incorporates the principle of
protection against compulsion of self-incrimination, which is one of the
underlying principles of criminal proceedings.
Confession before Police (Article 38 and 39 QSO, 1984)
These Articles establish that a confession made to the police is not
considered an admissible piece of evidence. Article 38 provides that no
confession made to a Police officer can be held against an accused, while
Article 39, proclaims that no confession given by the accused in police
custody is to be used against him in the court of law, unless it is made in the
presence of a Magistrate exercising powers under the Cr.P.C. 1898.
These provisions were enacted to ensure the right to a fair trial, since they
reduce the possibility of convictions upon confessions extracted through
torture. Yet, Article 40 allows for recoveries to be made, the text of which
states that, “If the confession of the accused is supported by the discovery of
a fact it may be presumed to be true and not to have been extracted.”
However, there is an important exception to this general rule under Section
21-H of the Anti-Terrorism Act 1997. This section asserts that in case of a
reasonable probability that the accused has committed the offence, any
confession made by the accused during investigation, without being forced,
before a police officer not below the rank of a District Superintendent of
Police, may be admissible in evidence against him. Yet, there may be a
deviation from the general procedure as found in Sec. 164 of the Cr.P.C 1898,
which requires that any such confession be made before a Magistrate. This
provision deviates from the right to a fair trial since confessions made before
police officers have a likelihood of being extracted through torture. However,
this is only applicable to terrorism cases, and is rarely applied in practice as
per recent judgments, and such confessions are now only admissible if there
is other evidence to substantiate the guilt of the accused.
Regarding Judicial Confessions, Section 164 of Cr.P.C. states that if a
judicial confession is honest and made voluntarily, it can provide the sole
basis for a conviction.
Investigation for Fair Trial Act, 2013
The Investigation for Fair Trial Act (IFTA), 2013 is the first legislative attempt
to regulate the use of evidence obtained from contemporary investigative
techniques in criminal trials in Pakistan. The Act empowers intelligence and
law enforcement agencies to conduct surveillance and the interception of
electronic and cellular phone communication for the purposes of any
investigation into an offense, and provides that it is admissible when obtained
following the necessary Court warrant. IFTA aimed to counter the issue that
existing laws did not regulate advanced investigative techniques, such as
surveillance of telecommunication devices of person(s), of property itself, and
interference in electronic modes of communication like e-mail.
However, in practice, the IFTA appears to have been interpreted, or applied,
in a restrictive manner in its approach towards the use of such evidence in
judicial proceedings, which has in turn prevented the ability of investigators to
derive, and prosecutors to present evidence from the contemporary devices or
techniques.
Anti-Terrorism Act, 1997
Another aspect of the right to fair trial is the law relating to bail. The ATA
restricts this right to a certain extent as Sec. 21D (2) of the ATA states that all
offences carrying the death penalty or imprisonment of longer than three
years, under the Act, will be non-bailable. This means it is the discretion of the
Anti-Terrorism Court, a High Court or the Supreme Court to decide whether
bail can be granted or not. Sec. 21D (4) of the Act highlights the
considerations that the Court must take into account when exercising its
powers in relation to a person seeking bail. The provisions include the nature
and seriousness of the offence with which the person is charged, the
character, antecedents, associations and community ties of the person, the
time which the person has already spent in custody and the time which he is
likely to spend in custody if he is not granted bail, and the strength of the
evidence of him having committed the offence. However, the ATA has often
been misused in practice, when ATA clauses are incorporated into the FIR
with malafide intent, which results in greatly diminishing the chance of the
accused receiving bail, hence impacting his right to a fair trial.
Under Section 21-L of ATA, an accused can be convicted if he avoids arrest
or evades appearance before any “inquiry, investigation or court proceedings
or conceals himself, and obstructs the course of justice,” but before being
punished, the Court must satisfy itself under Section 19(10) ATA, that such
absence was deliberate.
If proper procedure under Section 19(10) is not followed, holding trials in the
absence of the accused may violate Articles 9 (right to liberty), 10(1) (right to
consult a counsel) and 10A (right to a fair trial) of the Constitution of Pakistan.
In addition, Sec. 19(7) of the ATA 1997 imposes a seven-day time limit for the
conclusion of an ATC trial, which is to be heard on a ‘day-to-day’ basis. If Sec.
19(7) is not adhered to, the matter is brought before the Chief Justice of the
relevant High Court for appropriate directions. Sec. 19(8a) further states that
such non-compliance may render the presiding officer of the Court liable to
disciplinary action by the concerned High Court. Such an emphasis on speedy
trials is likely to result in causing ATC Judges to pronounce judgments without
affording adequate time for the defence to plead its case. This could then
possibly result in a derogation from the right to fair trial granted in the
Constitution.
General Clauses Act 1897
In addition to Article 13 of the Constitution which provides for the safeguard
against double punishment as well as self-incrimination, Sec. 26 of the
General Clauses Act 1897 also extends a similar protection. It states that if an
act or omission that is punishable under two or more enactments, the offender
would only be liable to be punished under either one of them and not both.
Pakistan Bar Council Free Legal Aid Rules 1999
Another aspect of the right to a fair trial is the right to a legal counsel;
however, in case the accused cannot afford a private lawyer, the state is
obliged to provide for an advocate in order to protect the accused’s right to fair
trial. In this regard, the Pakistan Bar Council Free Legal Aid Rules 1999,
which were framed under the Legal Practitioners & Bar Councils Act 1973,
provide for “free legal aid to indigent litigants”. Pursuant to these rules, free
legal aid committees were constituted at the federal, provincial and district
level. According to these rules, any person desirous of free legal aid must
submit an application to the appropriate Committee, which is then examined
and processed. The funds are then generated through allocation by the
“Pakistan Bar Council, the grants sanctioned by any Government, Local or
other body or authority and voluntary contributions made by the Bar Councils,
Bar Associations, Advocates, any other Institution, Foundation, Trust,
Organization or an individual.”