MUHAMMAD FAZLE GHANI KHAN, J.-Appellant Allah Diwaya son of Pit Bakhsh, Rind Baloch, aged 22 years, resident of village Bait Qaimwala, Police Station Dira Din Pariah, District Mazaffar--garh on a charge under section 302, P. P. C. For the murder of one Karim Bakhsh son of Jewan alleged to have been caused on 9th of January 1965 at about 8 a. m. Near Nehar Magsan and for having committed the murder of his sister Mst. Nooro on the same day at about Pehar din charha in the area of Chah Habib Wala, village Bait Qaimwala within the jurisdiction of Police Station Dira Din Pariah. The appellant has been convicted accordingly by order of the trial Court dated 18th of January 1966 and has been sentenced to transportation for life. He has preferred this appeal against his conviction and sentence from jail.
2. Briefly stated the prosecution story ruins as follows:- Sometime before the fateful day, Karim Bakhsh deceased had abducted Mst. Nooro, sister of the appellant, and married her forcibly, About 22/23 days before the occurrence Karim Bakhah started living in his house in village Bait Qaimwala with Mst. Nooro and this at was resented by appellant and his brothers Allah Ditta and Ghulam Farid and they were seeking an opportunity to kill both of them. It is alleged that on the day of occur--rence deceased Karim Bakhsh was going on the carrier of a bicycle which was drived by Barkhurdar (P. W.) and both of them were proceeding towards Taunsa Barrage. Karim Bakhsh had his gun (P. 6) and cartridge (P. 7) with him, These weapons he carried for his personal safety on account of the apprehensions which he had at the hands of the appellant and his brothers. When Barkhur--dar (P. W.) and Karim Bakhsh deceased passed on the bicycle at a distance of 21 miles from Taunsa Barrage the appellant is alleged to have inflicted hatchet blows upon Karim Bakhsh with his hatchet (Exh. P. 8). The bicycle went out of control and Barkhur--dar (P. W.) fell down at a distance of 4/5 paces from the place of occurrence.
The appellant continued inflicting blows upon Karim Bakhsh with his hatchet till he was dead. The gun of the deceased had also fallen to the ground which was picked up by the appellant and he started towards the house of the deceased in village Chah Habib Wala Bait Qaimwala. According to the prosecution he was seen going inside the house of Karim Bakhsh deceased by Siddique and Habib (P. Ws.). Having entered the house of Karim Bakhsh, the appellant is alleged to have started inflicting injuries upon his sister Mst. Nooro with his hatchet and at the same the the above-named to persons reached the spot and saw the occur--rence. Siddique and Habib overpowered the appellant before whom the appellant is alleged to have admitted that he had also killed Karim Bakhsh by the road side leading to Taunsa Barrage. Siddique and Habib went to the place where the dead body of Karim Bakhsh was lying, thereafter, Siddique went to the Police Station Dira Din Panah and lodged F. I. R. (Exh. P. B.) at about 11 a.m. On the 9th of January 1965 which was recorded by Sh. Mohd, Ali S. I. (P. W. 14). The S. H. O. Reached the spot and found the dead body of Karim Bakhsh lying on the ground. He des--patched the dead body to the mortuary under escort and thereafter, proceeded to the house of Karim Bakhsh in village Bait Qaimwala where he found Mst.
Nooro lying injured in an unconscious condition outside the house. Mst. Nooro was sent to the District Headquarters Hospital, Muzaffargarh where she was medically examined on the 9th of January 1965 at about 7 a. m. By Dr. Mushtaq Ahmad. Mst. Nooro died subsequently in the hospital on the 12th of January 1965. The post-mortem examination of Karim Bakhsh was conducted on 10th of January 1965 by Dr. Mushtaq Ahmad and the same doctor con--ducted the post-mortem examination of Mst. Nooro on the 12th of January 1965. It is not necessary to reproduce the medical evidence in this case as we are going to dispose of the appeal on a technical ground.
3. The appellant was present on the spot in the custody of the P. Ws. The Sub-Inspector formally arrested him and also took into possession his hatchet (Exh. P. 8) and its broken handle (P. 9). The appellant is stated to have led the Sub-Inspector to a ditch near the dead body of Karim Bakhsh from where he got recovered shot gun (P. 6) and cartridge (P. 7) which were formally taken into possession. After the completion of the investigation the challan NN as put up in Court. He was committed to the Court of Session and has been tried, convicted and sentenced for the offence for which he was charged by the Additional Sessions Judge as stated above.
4. At the trial the prosecution examined as many as 14 wit--nesses in support of its case.
Barkhurdar (P. W.) gave the eye--witness account relating to the murder of Karim Bakhsh deceased and Siddique (P. W.) narrated the story of the murder of Mst. Nooro. The appellant in his statement before the Committing Magistrate did not answer the allegation of the prosecution and made a categorical statement in reply to the each question put to him by the Committing Magistrate, that he would make his state--ment in the Court of Session where he would also produced his defence. In his statement under section 342, Cr. P. C. Before the trial Court the appellant is alleged to have admitted the entire prosecution case that he caused the death of Karim Bakhsh on 9th of January 1965 in the presence of Barkhurdar (P. W.) and also murdered his sister Mst. Nooro by the same hatchet in the house of Karim Bakhsh deceased inside the village where he was apprehended by Siddique and Habib (P. Ws.) and while under police custody he led the Sub-Inspector to the recovery of gun (P. 6) and cartridge (P. 7) from a ditch near the dead body of Karim .Bakhsh deceased. In answer to the question as to why this case against him, the statement attributed to the appellant is to the effect that his sister Mst. Nooro was originally married to one Muhammad Bakhsh on whose death she eloped with Karim Bakhsh deceased during the period of the Iddat and in spite of the best efforts of the appellant, the deceased did not restore Mst. Nooro and instead challenged the appellant to do what he could. The appellant is alleged to have admitted that on the day of occurrence he was grazing his herd of sheep and goats, when Karim Bakhsh passed near him. At that the he could not control himself and attacked Karim Bakhsh with his hatchet which he was carrying with him at that the and in the heat of some excitement he went to the house of Karim Bakhsh and killed his sister Mst. Nooro over there.
5. The learned Additional Sessions Judge accepted the evidence of Barkhurdar and Mohd. Siddique (P. Ws.) and at the same the he rejected the arguments which were advanced by Malik Qadir Bakhsh Advocate on behalf of the appellant that the appellant had acted under the impulse of grave and sudden pro--vocation which he was nourishing in his heart since his sister had eloped with Karim Bakhsh deceased. He came to the conclusion that from the evidence led by the prosecution it had been estab--lished that the at of both the deceased gave provocation to the appellant and his brothers but since the element of suddenness was missing, the appellant was not entitled to the benefit of Excep--tion of section 300 of the P. P. C. However, a lesser penalty was imposed as in the opinion of the trial Court the appellant was compelled to at in the manner in which he did.
6. In his grounds of appeal submitted from jail the appellant has stated that he was given no opportunity to defend himself pro--perly because Malik Qadir Bakhsh Advocate who had appeared on his behalf in this case was engaged by the complainants and no counsel was appointed by him to defend him at the trial. He has further stated that he appeared before the Court on the 17th of January 1966 but neither any evidence was recorded on that date nor any arguments were heard and he was returned to the judicial lock-up and produced in Court again on the 18th of January 1966 when he was informed that he had been convicted to transportation for life. The appellant has also complained that he was given no opportunity to lead his defence, therefore his appeal may be accepted and rehearing of his case may be ordered.
7. After going through the entire proceedings in this case and hearing the learned counsel for the State at some length we must at the outset express our dissatisfaction and disapproval of the shabby manner in which the proceedings were conducted in this double-murder case by the trial Court. The Additional Sessions Judge, fixed 17th of January to 19th of January 1966 for the trial of this case and ordered that the appellant should be informed of the dates of hearing and that an enquiry should also be made from him if he wanted to engage a defence counsel at his own expense or at the expense of State. In pursuant to this order a Robkar was sent to the Superintendent, District Jail, Muzaffargarh on 18th of December 1965 to inform the appellant about the dates of hearing and also to ask him about the engagement of a defence counsel at State expense. The Superintendent made an enquiry from the appellant on the 27th of December 1965 in which the appellant made a definite statement that he wanted to engage a counsel at State expense. The appellant's reply was duly thumb-- marked by him and attested by the Superintendent Jail who returned the Robkar to the Court. The matter came up before the learned Additional Sessions Judge on the 4th of January 1966 and according to the request of the appellant Sh. Abdul Aziz Advocate was appointed as a counsel at State expense to defend the appellant during the trial on the same date the learned Addi--tional Sessions Judge directed that copies of the statement of the witnesses should be provided to Sh. Abdul Aziz and he should also be informed about the date of hearing. This order was duly noted by Sh. Abdul Aziz Advocate and his signatures appear on File No. 5/36 of the trial Court. We were, however, surprised to note that thereafter there is no order of the Additional Sessions Judge from which it could be ascertained that Sh. Abdul Aziz was superseded at any stage with the consent of the appellant and Malik Qadir Bakhsh was duly engaged on his behalf. There is no power of attorney of Malik Qadir Bakhsh on the file nor there is any other material from which it could be gathered that the appellant had withdrawn his earlier request of engaging a counsel at State expense and had appointed a counsel of his own choice.
8. We are not prepared to express any opinion on the merit of the case as we are of the view that the appellant has been sadly prejudiced in his defence for the obvious reason that he was not given a counsel of his choice according to his desire which he had expressed before the Jail authorities and which has also been accepted by the Additional Sessions Judge as discussed above. From the perusal of record it appears that no effort whatsoever was made to cross- examine Barkhurdar and Muhammad Siddique, the only to eye-witnesses of the murders of Karim Bakhsh and Mst. Nooro respectively. There is no cross-examination worth the name on the file which could satisfy us that a counsel of Malik Qadir Bakhsh's standing at the Bar was really performing his' duties as a defence counsel engaged in a double-murder case.
9. The recording of prosecution evidence continued from 17th to 18th of January 1966 on which date the 'appellant's state--ment under section 342, Cr. P. C. Is alleged to have been recorded and judgment was also announced on that date. In the English record after the statement of the appellant a certificate is appended in the hands of the trial Judge to the effect that the appellant's statement was recorded and attested by him in his presence. In the Urdu record, however, we find that a place was properly marked for the thumb-impression of the appellant after his statement had been recorded in Urdu but his thumb-impression o signature does not appear on his statement. In these circumstances, we are very much in doubt whether the alleged statement, of the appellant under section 342, Cr. P. C. Which, in fact, is the confes--sional statement of a double murder case was actually made by him of his own free will and was so correctly recorded.
10. In the absence of any authority of Malik Qadir Bakhsh to represent the appellant and in the absence of the counsel for the State who was duly appointed by the trial Court for the defence of the appellant we are of the opinion that the appellant has been badly prejudiced in his defence for want of proper legal advice. There appears to be force in the ground of appeal that the counsel who had appeared on behalf of the appellant at the trial was not duly authorized by him to defend his case. The non appearance of the counsel at State expense on the date of hearing has resulted in the miscarriage of justice and the Additional Ses--sions Judge has acted in clear disregard of the instructions contained in Chapter 24-C of the High Court Rules and Orders, Volume III, Which enjoins upon the Sessions Judge to appoint a counsel for the accused in the trial of cases punishable with death at State expense. The non-appearance of the counsel who was duly appointed at State expense and the appearance of a different counsel than the duly authorized on by the appellant amounts to an illegality in the conduct of the trial and in our opinion is not curable under section 537 of the Cr. P. C.
11. As a result of the above discussion we accept this appeal and set aside the conviction and sentence of the appellant as recorded by the order of the Additional Sessions Judge dated 18th of January 1966. The case is remanded to the learned Additional Sessions Judge, Muzaffargarh who will try it afresh on merits and give it priority over other cases. At the same the the learned Additional Sessions Judge is directed to ascertain from the appel--lant if he wants to engage a defence counsel at State expense. In case the appellant expresses his willingness to do so, a counsel should be duly appointed for this purpose who should be provided all the facilities according to law. In case the appellant wants to engage a counsel at his own expense, the counsel so engaged by him should be directed to file his Power of Attorney in Court so that the engagement is not refuted subsequently. Re-trial ordered