Appellants Azim (35) and Chakar (35) have filed this appeal through their counsel. Appellants Amir Bux (25) and Samano (35) have separately preferred their appeals from jail. These appellants were tried for committing dacoity in the house of Muhammad Yaqub by the learned Additional Sessions Judge, Jacobabad, and convicted (a) under section 395 read ' with section 397, P. P. C. And each of them was sentenced to 1G years' rigorous imprisonment and a fine of Rs. 1,000 each and in default to undergo rigorous imprisonment for one year, (b) under section 458, read with section 149, P. P. C.
And each of them was sentenced to 10 years' rigorous imprisonment. Appellant Azim was further convicted under section 13 (d) of the Arms Act for being in possession of an unlicensed pistol and sentenced to two years' rigorous imprisonment. All the sentences except the sen--tence of fine were ordered to run concurrently. In their appeals, they have challenged their conviction and the sentence on the above charges.
2. A theft was committed in the house of Mohammad Yaqub in the early hours of the morning of 23rd April 1966. It was detected by Khan Muhammad his uncle when he got up at that time to answer the call of nature. He discovered that there was a big hole made on the backside of the wall and one of the windows of the room had been taken out from its position. He then awakened Muhammad Yaqub who discovered that an iron box was missing. This box contained articles worth about Rs. 493. They then tracked the prints up to a distance of about 7 or 8 miles and ultimately spotted the appellants and one Khaliqo, an absconder. There was an exchange of fire and the appellants who had received gunshot injuries were apprehended. A bundle containing house-hold articles including a golden ring and a thermos was secured from them. One pistol was seized from the possession of appellant Azim. One empty cartridge and two misfired cartridges were also secured. Khaliqo, however, escaped and is still absconding. The appellants and the articles' recovered from them were brought at Police Station Karim Bux drat 7-33 p.m. On 23rd April 1966, where the report of the incident was lodged by Khan Muhammad (P. W. 2).
3. The learned counsel for the appellants however raised a preliminary objection with regard to the legality of the trial. According to him, the appellants were entitled to engage a counsel of their choice to defend themselves in accordance with subsection (1) of section 340, Cr. P. C. The trial Court by refusing to grant the adjournment denied to them the opportunity to engage a counsel to defend themselves and that, therefore, they were prejudiced in their defence at the trial, which has to be afresh as the conviction cannot be sustained for this reason.
The trial commenced on 13th February 1968. On this appellants moved an application for adjournment on the ground that they had not been able to meet their counsel and to take out the paper book from the office. This application was rejected by the following order:-- "The D. A. Mr. Thahim has appeared and made the statement that he does not appear for the accused. The accused have given no explanation for granting them any time. It appears that they have not paid the fees to their counsel. I don't see any reasons to adjourn the case. The entire evidence is available including the expert from Lahore. This application is dismissed."
5. Mr. Abdur Razak Thahim had also filed his power which is undated and is included in the miscellaneous file of this case. The learned Additional Sessions Judge examined as many as ten prosecution witnesses on that date, concluded the entire trial and pronounced the judgment that very day. The record shows that either there was no cross-examination of the prosecution witnesses or one or two questions were put to some of them by one of the appellants. This much is therefore clear that there was no effective defence on behalf of the appellants without a counsel. '
6. There appears to be no obvious reason why the adjourn--ment should not have been granted even though the witnesses were present. At best their examination-in-chief could have been recorded and the case should have been adjourned for cross-examination to another date. There is also no apparent reason why the learned Additional Sessions Judge be in a hurry to con--clude the hearing of this case. In one day, the trial was concluded and the Judgment was pronounced. It does not convince my mind how all this was possible in just one day. Be that as r may, the learned Additional Sessions Judge should have in the interest of justice adjourned the case if there was a request in this behalf by the appellants as they were being tried on serious charges and their right to defend themselves by a counsel was statutorily conferred. It was thus an irregular trial, which ha resulted in failure of justice. Here, there was a denial of the opportunity to engage a counsel after their counsel had refused to appear in the case. Subsection (1) of section 340, Cr. P. C. Will not however be attracted, for the Court has not denied the counsel of the appellants the right of appearance before it, it is only a denial of an opportunity to engage a counsel. The learned Counsel for the State has also candidly conceded before me that the trial was irregular and that it should be set aside and a fresh trial ordered in view of the above defect.
7. In the result, I would, therefore, accept the appeal, set aside the convictions and the sentences and direct that the appellants be retried on the above charges either by the Sessions Judge himself or by another Additional Sessions Judge, to whom the case is made over for re-trial by the Sessions Judge.