Salahuddin Panhwar, J.--Order dated 29.5.2017 reflects that:-- "Mr. Muhammad Sabir Chipa Advocate files memo. of appearance but he is not capable to proceed with the matter. It is strange that how in case of transportation of life learned P.G. has appointed him as counsel for pauper accused, who is unable proceed the case, hence, learned P.G. shall submit criterion as well authorization letter for appointment of counsel for pauper accused within four days."
In pursuance of above order, learned PG Sindh present, submits statement contending therein that: "That in compliance of decision made in the meetings regarding Monitoring of Anti-Terrorism Cases, held on 24.09.2016 and 15.10.2016 at Supreme Court of Pakistan, Branch Registry, Karachi, under the Chairmanship of Mr. Justice Amir Hani Muslim Monitoring judge, the Finance Department, Government of Sindh has sanctioned the funds to the tune of Rs, 10,000,0001- (Rupees Ten Million only), under the Head of Account "SC 21118 Law & Parliamentary Affairs KQ 0392 Prosecutor General C:P.S.D Karachi-, and placed at the disposal of the office of Prosecutor General Sindh, to utilize such amount, as pauper fee and law charges.
That a letter was widely circulated and pasted on notice board of the Bar Associations all over Province, whereby the applications were invited from Advocates who were interested, to defend/to appear on behalf of pauper convicts 'appellants and in pursuance of such circular about 88 Advocates have, submitted their CVs."
He has further annexed documents i,e, minutes of the meeting regarding monitoring of anti- terrorism cases dated 24.9.2016 and 15.10.2016. Paragraph No, 11. of the minutes of meeting dated 15.10.2016 being relevant is reproduced herewith: "The Finance Secretary has disbursed the required amount to the Prosecutor General in accordance with the Minutes recorded in the last meeting. The Prosecutor General states that to further facilitate the early disposal of cases, the I.G. Prisons may be instructed to direct the.
Superintendents of Jails to provide advance copy of the Appeal preferred through Jail. Such directions shall be notified by the I.G. Prisons immediately. A copy of the said Appeal shall be sent to the Prosecutor General in future so that it can ease out his work of appointment of the Advocates on the State expenses to defend the convict as agreed in the earlier meeting!'
He has also appended allocation of funds letter as well list of Advocates, further contends that Prosecutor General Office is authorized to appoint Advocate for pauper accused and fix quantum of fees, such procedure is being adopted strictly after completing all requisite formalities. It is further contended that every UTP under ATA and other ordinary laws can avail this facility and normally practice is that Courts are appointing advocates as well fixing their professional fee.
2. After examining the relevant documents and considering the contentions of learned PG Sindh, we appreciate the procedure adopted by him. Here, it would not be out of place to mention that appointment of the Advocates for pauper is an affirmation to the guarantee, provided by Articles 9 and 10-A of the Constitution which read as: "Art. 9. Security of Person.--No person shall be deprived of life, or liberty, save in accordance with law.
This article prima facie assures that no harm or prejudice should be caused to 'life' or 'liberty' of a citizen except in 'accordance with law'. There can be no denial to the fact that a 'criminal charge' is not a mere paper work against a 'person' but it is the prosecution (law enforcing agency) which insists punishment to such person which shall either deprive the charged person of his life or least liberty, as per criterion of punishment provided for charged offence. Thus, the phrase 'in accordance with law' comes into play whenever a person is charged of an offence hence requires to be dealt with all ease and facilities which could fulfill the phrase 'in accordance with law'. Such rights however were further insisted by insertion of Article 10-A in the Constitution which reads:-- Art. 10-A. Right to fair trial--For the determination of his civil rights, and obligations or in any criminal charge against him, a person shall be entitled to a fair trial, and due process."
The phrase 'in accordance with law' since is always to be taken as synonym to 'due process' which has by now stood defined by Apex Court as:
(a) A person shall have notice of proceedings which affect his t rights;
(b) He shall be given reasonable opportunity to defend;
(c) The Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(d) It is a Court of competent jurisdiction.
Reference in this regard may well be made to the case of Babar Hussain Shah & another v.
Muojeeb Ahmed Khan & another reported as 2012 SCMR 1235 wherein the 'due process' has been defined so.
Thus, it can safely be concluded that guarantee, provided by Articles 9 and 10-A of the Constitution, that any deprivation of life or liberty shall only be in 'accordance with law' would include all the rights of the accused, charged of a criminal offence to the extent of his trial hence such rights of the accused would include a proper representation by a pleader which even has been kept in view by legislature in Code of Criminal Procedure, 1989 by inserting Section 340(1) which reads as: "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."
Thus, it is germane to add here that proper representation through a pleader should never be taken as a mere formality rather should always satisfy the objective thereof which is first to avoid unnecessary delay in trial and secondly to have the pauper, accused a proper legal representation else the guarantee, insisted with phrases 'in accordance with law' and 'fair-trial & due process' shall fail. We would not hesitate in saying that appointment of one and same counsel for every pauper accused by a Court is not worth appreciating because it not only leaves the pauper accused with no choice but may also prejudice the concept of proper representative because of over-burden.
3. At this juncture, it would be proper and relevant to refer the operative part(s) of Part-I(E) of Criminal Courts Practice & Procedure which are: "2. High Court may engage counsel at Government expense in cases other than of poverty.--If the High Court decides that the accused is unable on account of poverty to engage counsel for his defence, the High Court shall make arrangements to employ counsel at Government expense.
The High Court may also employ counsel, if it thinks fit, in case when the accused is unrepresented, irrespective of considerations relative to the means of the accused to engage a counsel.
3. List of selected defence counsel to be kept.--The High Court shall, for the above purpose, maintain a list of legal Practitioners whom the Chief Justice may select from time to time as fit to be employed in such cases.
4. Printed record be supplied from of cost in advance to defence counsel.--When a counsel is required, the Court shall select from this list a legal practitioner to defend the accused. Counsel appointed in such cases should be given sufficient time to enable him to study the necessary documents which will be the printed record of the case as prepared in the High Court. This will be supplied free of cost.
5. Scales of fees of defence counsel.--The legal practitioner, so employed shall receive a....
It is necessary to understand that discretion has solely been given to the Courts for appointing counsel for pauper accused. This also seems to be with wisdom that normally if things are left at discretion of a party he would never choose a strong rival rather would prefer to choose an obliging rival or least a weak rival. In a criminal case the prosecution is always rival of the accused who comes forward with a specific claim to be possessing sufficient proof against the accused hence asks the Courts to award punishment while legally the accused is presumed as 'innocent' who normally denies the prosecution claim as 'false'. Thus, it would never be fair to leave appointment of counsel for a pauper accused at discretion of the Prosecution office as it least may allow the pauper accused to take- a plea of prejudice. The Court, being supposed to be guardian of the rights of either sides, as well an impartial authority / forum where either sides agree to proceed hence an action by the Court is normally taken as bonafide therefore, per referred rules the procedure for appointment of advocate for pauper accused, nowhere, includes any role of the prosecution office which has its own irrefutable wisdom, logic and reasoning. Further, the above criterion also insists a list of selected counsels to be kept (available) which also appears to be with wisdom that it would include only those who are prepared to represent the pauper accused not at their demanded fees but against a reasonable one; the Court has option of selection to choose the best among available list and even the pauper accused may put his finger upon any one of such counsels. The competence of the Criminal Court to appoint counsel for pauper accused also surfaced in a case of Faisal v. State (PLD 2007 Karachi 544), wherein a specific proposition was, framed as: "Whether the Court is required to provide an Advocate to an accused person who is unable to engage an Advocate in a case of offence involving imprisonment?" and was answered as: "22From the above it is manifest that the accused from the very-stage of his arrest till final disposal of the case is required to be defended by a legal expert viz. Advocate if he is poor, indigent or pauper and the State is responsible to provide such assistance to him on State-expense."
The Code of Criminal Procedure, since, does not provide a mechanism for appointment of counsels for pauper accused however the above guidelines though have been\ made applicable to 'High Courts' only but would be applicable for all the Criminal Courts because every criminal charge does include, possibility of deprivation of life or liberty. This was so affirmed in to case of Faisal v.
State supra as: "23... The above beneficial\prescriptions operate by force of Article .9 of the Constitution from the lowest to the highest Court where deprivation of life and personal liberty is in substantial peril."
Worth to add here that this seems to have been the object because of which the Bar Councils were approached to have consent of those counsels agreed to represent the pauper accused. The guidelines are sufficient to make it quite clear that the Courts are competent under criminal law to appoint advocate for pauper accused after obtaining consent but this practice should also satisfy the object and should never be undertaken as a mere formality.
4. Now, what remains to be addressed is a mechanism with /1 regard to quantum of fees. We would also say here that a facility would never be allowed to be exploited or defeated by demanding what the `object' of a procedure (law) does not permit. This seems to be object because of which it has been insisted to have a list of willing counsels ready with Courts who agree to represent the pauper accused not at their demanded fee / charges but what may be expected to be paid by someone else (government) for a pauper. However, since we are also conscious that a meager fee / chargees may be an excuse for a counsel for not doing the due labour which may also hamper the object of fair-trial therefore, a balance has to be struck. Thus, while appointing, learned Presiding Officers must be conscious with regard to abilities of Advocates, experience, nature of cases and should never stuck with one counsel alone which, if allowed, shall prejudice the concept of fair and proper representation which is one of the guaranteed fundamental right of a pauper accused even. The Court while selecting/appointing must examine the experience and abilities of counsel(s), consenting to represent pauper accused. Such cases should be assigned to various advocates by actively involving the concerned Bar Association or on voluntary basis and their performance must be considered as a ground to appoint counsel on State expenses. The active involvement of the Bar Councils mean time to time reminder of notice least after every six months, referred herein above, in the para supra of the report so as to have a ready list of willing advocates of concerned Bar to represent the pauper accused. The list shall be prepared by the District & Sessions Judge which will be circulated to all Courts, subordinate to him for information and to appoint advocate for pauper accused. The Courts while issuing requisite certificate may well refer nature of case and a reasonable fee which should not be less than Rs, 2000/- per hearing of a case of capital punishment and Rs, 500/- for other cases. Worth to add that hearing would include those- dates only where trial proceeds. However, the Courts may enhance the fee considering the standing of counsel and nature of cases, if it is based on choice of the pauper accused for a senior lawyer. While providing counsel this shall also be ensured that counsel undertakes not to take unnecessary adjournments and to properly represent the pauper accused. It is also worth to add here that since every reason demands that such counsel should be paid the requisite fee on production of necessary certificates without any undue delay and at door-step. Therefore, it would also serve the object if the disbursement of the fee / charges is made available through the Deputy Commissioner of the respective District for which the PG office shall ensure necessary arrangement.
5. The so far discussion, makes us feel safe in saying that the said criterion (guidelines) can well be adopted by all the Criminal Court(s) until the quarter concerned (Sindh Government) notifies a detailed procedure for appointment of defence counsel for pauper accused for lower Courts keeping in view the criminal circulars and other land laws. Considering all above pros and cons the prima facie criterion would be:
(i) The District and -Sessions. Court(s) shall have a list of counsel(s) prepared who consent to represent the pauper at a reasonable fee by following the given criterion and will circulate to all Courts subordinate to it (The Special. Court(s) under ATA however shall maintain their own list);
(ii) the accused would make a formal request for appointment of counsel on government expenses while claiming himself as pauper;
(iii) the Court will examine such request with regard to prima facie ability or inability of accused to engage counsel then would declare him as pauper or otherwise. The examination however would not require an inquiry but prima facie facts and circumstances to be considered so as to avoid any undue delay;
(iv) on being satisfied, would provide the available list of willing counsels to accused so as to choose one of them, however, if accused leaves it at discretion of Court, the Court may;
(v) the fee I charges for counsel for pauper would also be determined considering given criterion which however should not be unreasonable;
(vi) after completion of trial, the necessary certificate shall be issued to counsel; -
(vii) The PG office shall make arrangement for availability of funds with DC office in a head, meant for such purpose: viii) the Deputy Commissioner Office shall ensure payment of the fee I charges without unnecessary delay;
6. Here, it is also important to mention here that till such notification the Office shall ensure compliance of the relevant Rule-3 of Part-I(E) of Criminal Courts Practice & Procedure which is: "3. List of selected defence counsel to be kept.--The High Court shall, for the above purpose, maintain a list of legal Practitioners whom the Chief Justice may select from time to time as fit to be employed in such cases."
7. Regarding instant case, we hereby appoint Mr. Nasrullah Korai advocate for pauper appellant on State expense. He would be entitled to receive Rs, 40,000/-. He will represent pauper accused with due spirit, as required by ethics of Bar and object of Article-10-A of the Constitution.
8. Office shall circulate this order to all criminal Courts under the supervisory jurisdiction of this Court as well as Prosecutor General, Chief Secretary Sindh and the Law Secretary.