' REHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Appeals Nos.361/2004 and 382/2004 as they arise out of a common judgment.
2. Brief facts given rise to the present appeals are that on 22-4-1996 in between 6.00 p.m. To 7.30 p.m. The appellants along with three unknown persons armed with deadly weapons, in front of house of Usman Ali situated in Defence Housing Society. Phase-V, Karachi, intercepted the car of complainant Kunwar Idrees who was travelling along with his daughter-in-law Dr. Sabahat. Two culprits abducted the above persons in the car and took them to Sunset Boulevard. During the journey the culprits robbed the jewellry and watch from Dr. Sabahat on pistol point and thereafter the culprits went away leaving behind the complainant and P.Ws. In the car. The complainant lodged such F.I.R. The police, after usual investigation, challaned the appellants along with minor accused Jehanzeb in the Court of Special Judge, S.T.A. Karachi. The trial Court separated the case of Jehanzeb, tried and convicted the appellants under the impugned judgment dated 24-8-2004.
3. The learned Advocates for the appellants have raised a preliminary point that the appellants were not properly defended before the trial Court because the charge and evidence was recorded in the absence of their Advocates, therefore, the trial has been vitiated as the case involves capital punishment. On the above point Mr. Azizullah Shaikh. Senior Counsel, was appointed as Amicus Curiae to assist the Court.
4. We have heard Mr. Azizullah Shaikh, Amicus Curiae, advocates for the appellants, A.A.-G. And perused the record of this case very carefully.
5. Mr. Azizullah Shaikh has argued that offence punishable under section 365-A, PPC involves capital punishment, therefore, the appellants were required to be defended by a counsel and the trial was required to be conducted in presence of their Advocate; that if the appellants were not able to engage an Advocate then the trial Court was required to provide the assistance of a counsel on State expense; that the charge and the evidence was recorded in the absence of the Advocates of the appellants; that the trial in absence of the Advocates for the appellants is an illegal trial which cannot be cured under section 537, Cr.P.C. He has relied upon State v. Zulfiqar Ali Bhutto (PLD 1978 Lahore 523) and Baz Muhammad v. State (PLD 2003 Quetta 73). He has also referred to Circular 6 of Federal Capital and Sindh Courts Criminal Circulars and Rule 35 of Sindh Chief Court Rules (Appellate Side) on the said subject. Learned Advocates for the appellants and A.A.-G. For the State have adopted the arguments of Mr. Azizulla Shaikh. Learned A.A.-G. Has further stated that the case may be remanded to the trial Court for proceedings in accordance with law.
6. We have given due consideration to the arguments, gone through the R&Ps and found that the case involves capital punishment.
7. The record reveals that on 8-11-2000 the charge was framed against appellants Shafique, Jahanzeb and Kamran. At that time they had not engaged any Advocate. On 6-12-2000 Mr. Yousuf Iqbal, Advocate filed power on behalf of minor co-accused Jehanzeb (whose case was separated). Mr. Iftikhar Ahmed, Advocate filed power on behalf of appellant Shafique Ahmed on 10- 1-2001. On the same date Mr. Gul Zaman Khan and Mr. Ilyas Wan, Advocates filed power on behalf of appellant Kamran. On 24-1-2001 the trial Court examined P.Ws. 1 & 2. On that date the Advocate for the appellants Jehanzeb and Kamran cross-examined both the witnesses but the Advocate for the appellant Shafique was not present, therefore, the trial Court asked the appellant to cross- examine the witnesses but he did not put any question to them. On 3-10-2001 the trial Court examined two more witnesses. The remaining witnesses were examined on 23-10-2002, 22-4-2002 and 20-1-2004. On the said dates none of the Advocates for the appellants was present, therefore, the trial Court asked the appellants to cross-examine the witnesses but they did not put any question to them. Thereafter the trial Court recorded the statements of the appellants under section 342, Cr.P.C. And then after hearing the S.P.P. Passed the impugned judgment.
8. From the above proceedings it is clear that when the charge was framed at that time the appellants were unrepresented by any Advocate. Only P.Ws. 1 and 2 were cross-examined by the advocate for the appellant Kamran. The Advocate for the appellant Shafique was absent on that date and thereafter the evidence was recorded in the absence of the Advocates for the appellants.
Thus, it has been established beyond any shadow of doubt that the trial Court proceeded with the case in the absence of Advocates for the appellants whereas only two witnesses were examined in the presence of Advocate for the appellant Kamran. It is also an admitted position that offence punishable under section 365-A, P.P.C. Involves capital punishment.
9. Now it is to be seen whether the trial conducted in the above manner has been vitiated or otherwise.
10. Article 10 of Constitution of Islamic Republic of Pakistan, 1973 provides that the accused shall not be denied the right to consult and be defended by a legal practitioner of his choice. Under section 340(1), Cr.P.C. Accused is entitled, as a matter of right, to be defended by a pleader. The said provision reads as under:-- "340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness.--(1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."
11. Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars provides that on the committal of the case the Magistrate is required to ascertain from the accused as to whether he intends to engage a legal representative at his own expense otherwise the Sessions Court would provide an Advocate on State expense to defend him. The said Circular reads as under:-- "6. In all cases in a Court of Session in which any person is liable to be sentenced to death, the accused shall be informed by the Committing Magistrate at the time of committal, or if the case has already been committed by the Sessions Court that, unless he intends to make his own arrangements for legal assistance, the Sessions Court will engage a Legal practitioner at Government expense to appear before it on his behalf. If it is ascertained that he does not intend to engage a legal representative at his own opense, a qualified Legal Practitioner shall be engaged by the Sessions Court concerned to undertake the defence and his remuneration, as well the copying expenses incurred by him, shall be paid by Government.
' The appointment of an advocate or pleader for defence should not be deferred until the accused has been called upon to plead. The Advocate or pleader should always be appointed in sufficient time to enable him to take copies of the deposition and other necessary papers which should be furnished free of cost before the commencement of the trial. If after the appointment of such legal representative the accused appoints another Advocate or pleader, the Advocate or pleader appointed by the Court may still in its discretion be allowed his fee for the case."
12. Rule 35 of Sindh Chief Court Rules (Appellate Side) also deals with the same subject which reads as under:-- "35. In what matters Advocate appointed at Government cost. When on a submission for confirmation under section 374 of the Code of Criminal Procedure, 1898, or on an appeal from an acquittal or on an application for revision by enhancement of sentence the accused is undefended, an Advocate shall be appointed by the Division Court to undertake the defence at the cost of Government, in accordance with the Government notification or rules relating thereto. Such Advocate shall be supplied a copy of the paper book free of cost."
13. From the above position it follows that an accused is required to be defended by a counsel of his choice as a matter of right. If an Advocate appears on behalf of the accused then he is required to be allowed to defend the accused. In an offence involves capital punishment, the law protects the rights of the accused as a duty has been cast upon the State to bear the expense of the Advocate if the accused is unable to engage an Advocate. When the committal proceedings were being conducted then at the time of committing the accused to the Court of Session the Magistrate was required to inquire from the accused as to whether he would like to engage Advocate of his choice and in case he was unable to do so then the accused was required to be informed that the Sessions Court would provide him an Advocate on State expense to defend his case. The committal proceedings have been abolished. Therefore, now the Magistrate, before the case is sent up to the Court of Session, shall inquire from the accused about the requirement of Circular 6 of the Federal Capital and Sindh Courts Criminal Circulars. Such facts should be mentioned in the diary to facilitate the Court of Session to decide in which cases a counsel on State expense is required to be appointed. In other cases or in which the Magistrate has not obtained the required information, as soon as the accused appears before the Court of Session, it is the duty of the said Court to ascertain whether the accused is represented by an Advocate or otherwise. If he is not being represented by an advocate then the Sessions Court is bound to engage a legal practitioner on Government expense to defend the accused. It is one of the duties of the Court of Session to see that the accused is represented by a qualified legal practitioner in the cases involving capital punishment. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded with.
Without first appointing an Advocate for the accused to defend him if he is unable to do so.
14. In the present case both the appellants had engaged their Advocates, therefore, they had exercised their right granted to them under the Constitution and Criminal Procedure Code but at the time of framing the charged the appellants were unrepresented as they subsequently engaged their Advocates before recording the evidence of witnesses. However, on the date when the statements of P.Ws. 1 & 2 were recorded the Advocate for one of the appellants viz. Shafique was absent. The Advocate did not send any application to the Court for adjourning the case nor the accused requested the Court for adjourning the matter. Subsequently, the trial Court examined the remaining witnesses in the absence of both the Advocates. The position was same as neither the Advocates sent any adjournment applications nor the appellants requested the Court to adjourn the matter. Nevertheless, it was one of the duties of the trial Court in trying the case of capital sentence to be more cautious and careful in examining the witnesses, as such, the trial Court should have inquired from the accused about the non-attendance of their Advocates before examining the witness. From the record it appears that the trial Court did not perform its function diligently so as to protect the rights of the appellants in the case involving capital punishment when their Advocates were absent. We are conscious of the fact that the accused persons are trying various methods to protract the trial on various grounds and one of the grounds of such tactics is not engaging Advocates or directing their Advocates not to appear before the Court so that the cases may not proceed. The trial Court has to keep a balance between the complainant party and accused so that nobody should feel prejudice or neglected. The Court may take appropriate steps to frustrate the design of the accused to delay the matter either of non- engaging the Advocate or the Advocate remaining absent without sufficient cause on the dates of hearing particularly, when the witnesses attend the Court. In such a situation the trial Court shall postpone the hearing of case for a certain period facilitating the accused to make his representation through his counsel. However, the trial Court shall not give undue latitude to the accused and allow the case to be adjourned for an unreasonable period. In order to meet with the situation the legislature has taken the matter in hand by providing a provision in Anti-Terrorism Act, 1997, under which section 8 thereof has been substituted by Act No,II of 2005 on 10-1-2005 by which the Anti- Terrorism Court has been allowed to adjourn cases if the Advocate of the accused does not appear before the Court for two consecutive hearings and the Court has been authorized to appoint a Counsel to defend the accused on State expense and proceed with the matter. The said provision reads as under: "(8) An Anti-Terrorism Court shall not give more than two consecutive adjournments during the trial of the case. If the defence counsel does not appear after two consecutive adjournments, the Court may appoint a State Counsel with at least seven years standing in criminal matters for the defence of the accused from the panel of Advocates maintained by the Court for the purpose in consultation with the Government and shall proceed with the trial of the case."
15. Thus, the legislature was conscious of the fact that the accused persons were trying to adopt delaying tactics on the above ground so that the cases before Anti-Terrorism Court might not proceed, therefore, they have provided a method to frustrate such tactics of the accused. The said method/procedure can be adopted by the Sessions Court to frustrate the delaying tactics on the above ground. As such, if on two consecutive dates the Advocate for the accused does not appear then a Counsel on State expense can be appointed and then the case can be proceeded with. If subsequently the Advocate for the accused of his choice appears then preference shall be given to that Advocate to defend the accused and the State Counsel may be retained to frustrate the future design of delaying the case by the accused.
16. It has also been observed that in some cases if the Advocate is appointed on State expense in the cases in which the accused refuses to engage an Advocate of his choice or unable to engage an Advocate, the accused refuses to recognize and accept such Advocate to defend him. In such eventuality it is the right of the accused to be defended by an Advocate of his choice. The Court cannot impose an Advocate upon the accused, if he does not accept the legal assistance provided by the Court then the case cannot be allowed to remain pending. In such a situation the accused shall be asked to defend the case himself and then the case can be proceeded with in his presence. Reliance is placed on Iftikharuddin v. Crown (PLD 1954 Lahore 547), State v. Zulfidar Ali Bhutto (PLD 1978 Lahore 523) and Baz Muhammad v. State (PLD 2003 Quetta 73).
17. We are shocked to see the conduct of the Advocates in this case. It is not expected from Advocates that they should remain absent without informing the Court or showing sufficient or reasonable cause. It is one of the duties of the Advocate to appear before the Court when he takes up a case of an accused person that is pending before such Court. It is also one of their professional duties to assist the Court because basically the Advocates are officers of the Court and their first duty and responsibility is towards the Court and then to their clients. Therefore, the Advocates who remain absent without any intimation or sufficient cause, are exposing themselves to be tackled by appropriate Bar Council because such conduct of the Advocates amounts to misconduct on their part which may entail cancellation of their licence to practise in the Courts.
The trial Courts shall refer the cases of such Advocates to the appropriate forum for taking action in accordance with law so that the administration of justice should not be hampered with. We hope and expect that appropriate Bar Council, on receipt of such reports from the Courts, shall take appropriate and immediate steps to punish the delinquent Advocates, if found guilty to save the administration of criminal justice and to play its due role to curb the delay in the disposal of cases, which will be a service to the cause of justice.
18. In the present case the trial Court did not perform its function diligently as in the beginning trial commenced in the absence of Advocates of both the appellants. Only two witnesses were examined in the presence of Advocate for the appellant Shafique. The remaining witnesses were also examined in the absence of Advocates for the E appellants. As such, the appellants were prejudiced in their trial and defence, therefore, a miscarriage of justice has occurred in the case.
The procedure adopted by the trial Court is an illegal procedure, that cannot be cured under section 537, Cr.P.C. Thus, it has vitiated the trial. Hence the impugned judgment is required to be set aside.
19. The impugned judgment reveals that on 20-1-2004, the appellants made a statement in writing informing the Court that their case might be proceeded with in the absence of their Advocates. The learned A.A.-G. Could not find such application in paper book or in R&Ps of the case. Be it as it may, such application, if any, was made after conclusion of the recording of the evidence. By that time the trial had already vitiated.
20. In the light of what has been discussed above the conviction and sentence awarded to the appellants under the impugned judgment are set aside. The case is remanded to the trial Court for retrial from the stage of framing fresh charge and that too in presence of the Advocates of the appellants. If the appellants engage their Advocates then they may be allowed to do so. If anyone of them or both do not engage Advocate then Advocate on State expense be provided to defend the said appellant or appellants. The appeals are allowed in the above terms.