NAIMATULLAH PHULPOTO, J---Appellant Syed Waris Khan was tried by learned Judge, Special Court-II (C.N.S.), Karachi. After full dressed trial, appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to Twelve (12) years and 6 months R.I and to pay fine of Rs,60,000/- (Rupees Sixty Thousands only), in case of default in payment of the fine amount, he was ordered to suffer S.1 for five (5) months more. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case as discussed in the FIR are that on 25.06.2013 at 1830 hours, Excise officials apprehended accused Syed Waris Khan while he was driving Rickshaw at National Hospital, Korangi Road, Karachi. Rickshaw was searched, 10 packets of charas, each packet of 1 kg., total 10 Kg charas were recovered from rear seat of the Rickshaw. Accused and case property were brought to the Excise Police Station, South Karachi AETO Daud Christopher Kolachi lodged FIR against the accused on behalf of State under section 9(c) of the Control of Narcotic Substances Act, 1997.
3. During investigation, charas was sent to the chemical examiner for report. 161, Cr.P.C. statements of the PWs were recorded; positive report of the chemical examiner was received. On the conclusion of usual investigation, challan was submitted against the accused under section 9(c) of the Control of Narcotic Substances Act, 1997.
4. Trial court framed charge against the accused on 07.09.2013 under section 9(c) of the Control of Narcotic Substances Act, 1997. However, in absence of the defence counsel. Accused pleaded not guilty and claimed to be tried.
5. At trial, Examination-in-Chief of PW-1 Daud Christopher Kolachi, AETO was recorded by prosecution on 11.11.2014 and 27.11.2014, respectively. At that time, accused had not engaged the defence counsel, cross-examination of the complainant was reserved. Accused submitted application for providing him the facility of defence counsel on State expenses on 10.06.2015.
Services of the defence counsel were provided to the accused. Thereafter remaining evidence of the prosecution witnesses was recorded. Prosecution side was closed at Ex.9.
6. Statement of accused was recorded under section 342, Cr.P.C. in which accused claimed false implication in this case and denied the prosecution allegations.
7. After hearing the learned counsel for the parties and assessment of evidence, by judgment dated 16.02.2016 trial court convicted and sentenced the appellant as stated above.
8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 16.02.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
9. Learned advocate for the appellant raised preliminary legal point that appellant was not properly defended before the trial court; charge was framed in absence of the defence counsel on 07.09.2013 and examination-in-chief of the complainant was also recorded in absence of the advocate for the appellant. Therefore, it is contended that trial has been initiated, illegally committed by the trial court was not curable. Lastly, it is contended that a case punishable for death cannot be proceeded in absence of defence counsel.
10.Learned D.P.G. conceded to the above legal position and recorded no objection, for remand of the case to the trial court for proceeding afresh in accordance with law.
11.We have carefully heard the learned counsel for the parties and perused the record of this case.
12. Offence under section 9(c) of the Control of Narcotic Substances Act, 1997 is punishable for death or imprisonment for life. For the sake of convenience, section 9(c) of the Control of Narcotic Substances Act, 1997 is reproduced as under:-- 9(c) death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): Therefore, the appellant was required to be defended by a counsel and trial was required to be conducted in presence of his counsel. If appellant was unable to engage an advocate, then trial court was required to provide facility of a counsel on State expenses before framing of the charge but in the present case, charge and examination-in-chief of PW-1 was recorded in absence of the advocate for the appellant. That the trial in absence of the advocate for the appellant is an illegal trial which cannot be cured under section 537, Cr.P.C.
13.Now it is to be seen whether trial conducted by learned Special Judge, CNS in the above manner has been vitiated or otherwise.
14.Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-- "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"
Above article provides that the accused shall not be denied the right to consult and be defended by a legal practitioner of his choice.
15.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."
16. 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 expenses otherwise the Sessions Court would provide an Advocate on State expenses 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 expenses, 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."
17.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."
18. From the above legal position, it transpires that an accused is required to be defended by a counsel of his choice as a matter of right. If an offence involves capital punishment, the law protects the right of the accused as a duty has been cast upon the State to bear the expenses of the advocate. If accused has not engaged an advocate then the Sessions Court/Special Court is duty bound to engage a legal practitioner on State expenses to defend the accused. It is one of the duties of the trial court to see that 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. In the present case, appellant was unable to engage a counsel. He submitted application and Examination-in-Chief of PW-1 was recorded. Nevertheless, it was the duty of the trial court in trying the case containing capital punishment to be very cautious and careful in examining the witness as such trial court should have inquire from the accused about non-engaging his advocate before examining the witnesses. From the record it appears trial court, did not perform its functions diligently so as to protect the rights of the appellant in the case involving the capital punishment when accused had not engaged a counsel.
19.We have no hesitation to hold that the appellant was prejudiced in his trial and defence, therefore, a miscarriage of justice has occurred in this case. The procedure adopted by the trial court is an illegal procedure, that cannot be cured under section 537, Cr.P.C. as held in the case of Shafique Ahmed alias Shahjee v. The State (PLD 2006 Karachi 377). Hence impugned judgment is liable to be set-aside.
20.For what has been discussed above the conviction and sentence awarded to the appellant under the impugned judgment dated 16.02.2016 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 advocate of the appellant. If the appellant engages his Advocate then he may be allowed to do so. If appellant does not engage an advocate, then advocate on State expenses be provided to the accused to defend him. Appeal is allowed to above extent.
21.The Registrar of this Court shall send a copy of this judgment to Mr. Sanaullah Khan Ghory, Judge, Special Court-II (CNS), Karachi wherever he is posted for his future guidance with advice to be careful in future.