TARIQ SALEEM SHEIKH, J. -This appeal under Section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), is directed against judgment dated 30.11.2017 passed by the learned Additional Sessions Judge, Jaranwala, in case FIR No.400/2016 dated 20.9.2016 registered at Police Station Lundianwala, District Faisalabad, for an offence under Section 9(c) of the Act.
Facts
2. Briefly , the prosecution case is that on 20.9.2016 Complainant Muhammad Akbar/SI (PW-2), Tehseen Shahzad 1017/C (PW-1) and other police officials were on patrol duty in Chak No.630/GB. At about 5:40 p.m. they were at the canal bridge on Dhangli Dulchian Road when the Appellant came that way holding a shopping bag. As soon as he saw the police party he turned around and started walking briskly . Muhammad Akbar/SI got suspicious and told him to halt and then interrogated and searched him. He recovered 1415 grams charas P-1 from his shopping bag which he seized vide Recovery Memo Exh.P A. After that he drafted complaint Exh.PB and forwarded it to the police station through Niaz Ahmad 426/C on the basis of which Muhammad Nasir Khan 3176/MHC (PW-3) registered FIR No.400/2016 Exh.PB/1. The investigation of the case was also carried out by Muhammad Akbar/SI (PW-2) who challaned the Appellant.
3. On 29.10.2016 the learned Additional Sessions Judge framed charge against the Appellant to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced three witnesses. Tehseen Shahzad 1017/C (PW-1) and Muhammad Akbar/SI (PW-2) were the recovery witnesses. The latter also transmitted the parcel of the recovered substance to the office of the Punjab Forensic Science Agency (PFSA) for chemical analysis and investigated the case. Muhammad Nasir Khan 3176/MHC (PW-3) was the Moharrar of the police station at the relevant time. He registered FIR Exh.PB/1and testified about safe custody of the case property in the Malkhana . In documentary evidence the prosecution inter alia adduced Narcotics Analysis Report (Exh.PD).
4. In his statement under Section 342 Cr.P.C. the Appellant denied the allegations levelled against him and professed innocence. He maintained that the police had got a false case registered against him to show their efficiency . He neither led any evidence in his defence nor appeared as his own witness in terms of Section 340(2)
Cr.P.C.
5. On the conclusion of the trial, vide judgment dated 30.11.2017, the learned Additional Sessions Judge held the Appellant guilty and convicted him under Section 9(c) of the Act and sentenced him to rigorous imprisonment for four years and six months with a fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of five months. However , he extended him benefit of Section 382-B Cr.P.C. Aggrieved, the Appellant has filed this appeal before this Court.
Submissions of the learned counsel
6. The learned counsel for the Appellant contended that the Appellant was innocent and the police had foisted the contraband on him due to ulterior motives. He maintained that he was not given a fair trial because when the material witnesses, Tehseen Shahzad/C (PW-1) and Muhammad Akbar/SI (PW-2), were examined he was not represented by a counsel. In the circumstances, his conviction and sentence were liable to be set aside and the case should be remanded for a fresh trial. On merits, the learned counsel argued that the prosecution case lacked credibility because it was replete with contradictions. Further , all the witnesses were police officials and there was no independent evidence to corroborate them. Although the alleged place of recovery was a thoroughfare, no private witness was associated with the proceedings. Lastly , safe custody of the case property and its safe transmission to the PFSA was not established which vitiated report Exh.PD.
7. On the other hand, the learned Deputy Prosecutor General controverted the above contentions. He contended that the Appellant was caught red-handed while carrying 1415 grams charas . The factum of recovery was proved by Tehseen Shahzad/C (PW-1) and Complainant Muhammad Akbar/SI (PW-2) who corroborated each other on all material points, including date, time, place and the manner in which the recovery was effected. Neither the said PWs nor any other member of the raiding party had malice or ill-will against the Appellant which could motivate them to falsely implicate him in this case. Hence, the mere fact that the Complainant did not associate any private person with the recovery proceedings had no legal consequence. Even otherwise, Section 25 of the Act excluded application of Section 103 Cr.P.C. to narcotics cases. The entire recovered substance was sent to the PFSA whose report Exh.PD was positive. The learned Law Officer submitted that after the prosecution successfully discharged its initial burden it was incumbent on the Appellant under Section 29 of the Act to prove his innocence which he had failed. He refuted his allegation regarding denial of fair trial and contended that he had engaged an advocate for his defence who duly represented him throughout the proceedings. On 25.5.2017 he was not available so the Appellant opted to cross-examine PWs Tehseen Shahzad/C and Muhammad Akbar/SI himself. He maintained that no prejudice had been caused to him for which an exception could be taken. He prayed for dismissal of this appeal.
Moot point
8. The foremost question that arises for consideration in this appeal is whether the Appellant has been denied fair trial and due process.
Jurisprudence on the right of accused to be represented or defended by a counsel
9. The concept of fair trial is central to the administration of justice. In Zahira Habibullah Sheikh and another v.
State of Gujarat and others (AIR 2006 SC 1367), the Supreme Court of India observed that "the principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all-comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind, viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turnin g a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society ."
10. Fair trial would be illusory unless the accused has a right to be represented and defended by a counsel of his own choice. In Muhammad Sukur Ali v. State of Assam (AIR 2011 SC 1222), the Supreme Court of India observed that "the right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e.g. Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals were provided counsel although they were responsible for killing millions of persons. Therefore, when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed."
11. Article 10 of the Universal Declaration on Human Rights, 1948, provides that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him. Article 11 of the Declaration provides protection against retrospective punishment and states that every accused in a criminal case would have all the guarantees necessary for his defence. On the other hand, Article 14(3) of the International Covenant on Civil and Political Rights, 1966, entitles a person facing a criminal charge either to defend himself in person or through legal assistance of his own choosing and, if he does not have it, he has to be informed of his right to get it. In case he cannot afford it, the same should be provided to him free of cost. Article 6 of the European Convention on Human Rights, 1950, makes similar stipulations.
12. Powell v. Alabama , 287 U.S. 45 (1932), is a landmark in the history of the United States. The Supreme Court reversed the convictions of nine young black men for allegedly raping two white women on a freight train near Scottsboro, Alabama, and remanded the case. The majority of the Court reasone d that the right to retain and be represented by a lawyer was fundamenta l to a fair trial and the judge must inform the defendant/accused of this right. If the latter cannot afford one, he should appoint one and provide him sufficient time to prepare for the trial.
The Supreme Court held that the Fourteenth Amendment Due Process Clause included at least part of the "right of counsel" referred to in the Sixth Amendment, making that much of the Bill of Rights binding on the states as well as the federal government. Sutherland J. highlighted the defendant's (accused's) need for a lawyer as follows: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."
13. After Powell v. Alabama there was a heated debate whether it also applied to non-capital cases. Betts v.
Brady , 316 U.S. 455 (1942), initially decided that, unless there were special circumstances such as illiteracy or complicated trial, there was no need for a court-appointed attorney . However , the said decision was overturned in Gideon v. Wainwright , 372 U.S. 335 (1963), wherein it was held that an indigent felony defendant/accuse d had a right to be provided a trial attorney . Later Supreme Court cases considered how early in the criminal process this right attaches, whether it applies to misdemeanours, and whether it applies to appeals from conviction. In Miranda v. Arizona , 384 U.S. 436 (1966), the Supreme Court further extended the rule and applied it to custodial interrogation by law enforcement authorities. The Miranda Rule' mandates that a suspect taken into custody must be informed of his rights before he may be interrogated. These rights are:
(i) The right to remain silent. This right may be invoked before or during interrogat ion. Once invoked, interrogation must cease;
(ii) The right to be aware that anything that the suspect says can and will be used against him in the court;
(iii) The right to have an attorney present during interrogations; and
(iv) The right to be provided an attorney by the state even during interrogation if the suspect cannot af ford one.[1]
2. 3.
14. In India the right to be defended by a legal practitioner is derived from Article 22(1) of the Constitution, the Directive Principles of State Policy and Section 304(1) of the Code of Criminal Procedure. The Supreme Court of India reiterated the importance of this right and enforced it in a number of cases. Some of the landmark judgments include Maneka Gandhi v. Union of India (AIR 1978 SC 597), M.H. Hoskot v. State of Maharashtra (AIR 1978 SC 1548), Hussainara Khatoon and others v. Home Secretary, State of Bihar (AIR 1979 SC 1369), Khatri and others v. State of Bihar and others (AIR 1981 SC 928), Zahira Habibullah Sheikh and another v. State of Gujarat and others (AIR 2006 SC 1367), Muhammad Sukur Ali v. State of Assam (AIR 2011 SC 1222), Rafiq Ahmed @ Rafi v. State of Uttar Pradesh (AIR 2011 SC 3114), and Muhammad Hussain alias Julfikar Ali v. State (Govt.of NCT), Delhi (AIR 2012 SC 750 = 2012 SCMR 1610).
In Hussainara Khatoon's case, supra, it was observed: "It is now well settled, as a result of the decision of this Court in Maneka Gandhi v. Union of India (AIR 1978 SC 597) that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be reasonable, fair and just'. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair and just'. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him."
15. Our Constitution guarantees legal aid to an arrested person as his fundamental right. Article 10(1) ordains that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult and be defended by a legal practitioner of his choice. This is reinforced by Article 10A which declares right of fair trial itself a fundamental right. In Shahsawar v. The State (1998 P.Cr.LJ 1758), a Division Bench of this Court held that the said right can also be read into Articles 4 and 9.
This constitutional mandate is given effect by Section 340(1) Cr.P.C. which stipulates that -- Any person accused of an offence before a criminal court, or against whom proce edings are instituted under this Code (Cr .P.C.) in any such court, may of right be defended by a pleader .
16. The Rules & Orders of the High Court (Lahore) further provide: i) Volume-III, Chapter 24, Part-C, Rule 1:
1. Presiding Officer to report whether accused can afford to engage counsel.- If the accused is unrepresented in a Sessions case and cannot afford to engage a counsel, the Sessions Judge shall make arrangement to employ a counsel at Government expense. Counsel in such cases should be appointed well in time to enable him to study the documents mentioned in Section 265-C of the Code of Criminal Procedure. ii) Volume-V , Chapter 4, Part-E, Rules 1 to 5: Rules regarding legal assistance to persons charged with capital offences in the High Court:
1. (a) When an accused is to be tried by the High Court in its original criminal jurisdiction for an offence punishable with death he shall be asked by the Court whether he can af ford to engage counsel for his trial.
(b) When an accused person has been called upon by the High Court to show cause why a lesser sentence should not be enhanced to a sentence of death, the Sessions Judge, on receipt of notice for service upon the person called upon to show cause, shall, if he is satisfied that the accused is unable, because of poverty , to engage counsel for his defence, furnish a certificate that the accused is entitled to be defended in forma pauperis .
(c) When a sentence of death is referred by a Sessions Judge to the High Court for confirmation under the provisions of Section 374 of the Criminal Procedure Code, the Sessions Judge shall note whether the accused person was represented by counsel in his Court, and whether the accused can afford to engage counsel for his defence in the High Court.
(d) When in an appeal against acquittal in a murder case the accused is undefended, the Sessions Judge, on receipt of a notice for service, shall, if he is satisfied that the accused is unable, because of poverty, to engage[4] a counsel for his defence in the High Court, furnish a certificate that the accused is entitled to be defended in forma pauperis.
2. 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 every case when the accused is unrepresented, irrespective of considerations relative to the means of the accused to engage counsel.
3. The High Court shall, for the above purpose, maintain a list of legal practitione rs whom the Chief Justice may select from time to time as fit to be employed in such cases.
4. 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....
For the sake of completion reference may also be made to Notification No. LO-III/PPD/1 1-28/2013 dated 12-01- 2015 issued by the Public Prosecutio n Department, Government of the Punjab, which further regulates appointment of defence counsel for the pauper accused in the Punjab and payment of their fee.
17. In a nub, an accused has an inalienable right to the services of a counsel. The principles enunciated by the courts for appointing a defence counsel by a court are summarized as follows: i) It is the duty of the court to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence that he is entitled to free legal aid at the expense of the State. Most of the people do not know about their rights under the law which causes deception and exploitation. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. ii) The facility of defence counsel is available to every accused. However , in cases where the accused persons have defences which are not only different but are also opposed to each other , the court should appoint a separate lawyer for every individual. iii) The court should ensure that the lawyer appointed to undertake the defence is competent enough to effectively and meaningfully represent the accused. The practice of appointing raw and junior advocates to defend the accused in capital sentence cases is disapproved. iv) Once the court appoints a counsel it should see that he performs his/her duty ef fectively and to its satisfaction. v) The appointment should be made well in time to enable the counsel to study the case. Even a counsel of high caliber cannot be expected to prepare defence in a murder case without sufficient time and necessary material.
The practice of appointing a defence counsel on the day of the trial is deprecated. vi) If the accused has already engaged a private counsel, his absence on one occasion is no ground for appointment of a defence counsel at State expense. However , where that counsel is continuously not putting up appearance, the Court must appoint a defence counsel. vii) The State counsel must know the language of the accused whom he is to represent so that they may communicate with each other .
18. The question as to whether the accused has a right to ask for a counsel of his own choice at government expense generated a lot of debate in the past. In the United States an indigent accused is not entitled to be represented by an attorney other than a public defender unless good cause for such an appointment can be shown. According to American Jurisprudence (Second Edition: 2018), although the Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel, the right does not extend to providing an indigent defendant with the representation of his or her choice. In Pakistan this issue was considered by the august Supreme Court in Hakim Khan and another v. The State and another (1975 SCMR 1). It ruled that under the Constitution an accused has a right to be defended by a counsel of his own choice but not necessarily at State expense. He can engage any counsel he likes but when he is not able to engage one the choice is no longer available to him. He has to be satisfied with the counsel assigned by the Court. Again, in Ghulam Rasool Shah and another v. The State (2011 SCMR 735), the Hon'ble Supreme Court observed that choice to engage a counsel at State expense is not absolute. If such a request of an accused is acceded, it is likely to involve millions[5]
6. 7. 8. 9. 10. 11. 12. 13. of rupees as professional fee and will result in delay of proceedings as many accu sed will be in the queue desiring to engage top-notch lawyers at State expense. This demand may go further for asking a defence counsel out of the district and even out of the country . The Hon'ble Court, therefore, held: "The Appellants charged with an offence visiting capital punishment cannot claim an exceptional treatment. An accused, though is regarded a favourite child of law yet favour cannot be extended to a stage which hinders the process of law and the proceedings of the Court are halted to a dead end. The provision of an advocate at State expense is a right of accused who for reasons of his poverty or otherwise is unable to engage a counsel, privately .
This choice can be exercised by him out of the advocates on the panel mainta ined by the Court. We have no hesitation in saying that the conduct exhibited by the appellants was disorderly , stubborn, unethical and not approvable, meant to delay the trial, deliberately , by erecting stumbling block in the way of Court."
19. In another case, Zafar Iqbal v. The State (PLD 2015 SC 307), the trial Court appointed a defence counsel but the accused did not permit him to cross -examine any of the prosecution witnesses. He insisted that the State should appoint one of the following advocates for him, namely , Sardar Muhammad Ishaq Khan, Dr. Babar Awan, Chaudhry Muhammad Iqbal, Mr. Ahmad Raza Kasuri, Mr. Rafique Bajwa, Mr. M.D. Zaman, Khawaja Sultan Ahmad, Dr. Khalid Ranjha or Mr. Latif Khosa as he did not have sufficient money to engage them. The trial court offered him a choice from among those available on its list but he did not agree. In the appeal against his conviction it was argued before the Hon'ble Supreme Cour t of Pakistan that the trial was vitiated because the accused had remained unrepresented throughout the proceedings which had caused him grave prejudice. The apex Court rejected the plea holding as under: "10. Under such circumstances it cannot be stated that the appellant was not provided a fair trial or his right to a fair trial was in any manner vitiated. Article 10A of the Constitution (inserted into Constitution by the Eighteenth Amendment Act, 2010) enshrines the right, to a fair trial and due process. However , this does not mean that an intransigent accused can be allowed to hold the criminal adjudication system hostage or create irregularities in the trial with a view to earn a future benefit. If this be permitted then every accused will either not engage a counsel or not permit the counsel appointed by the State to do his job and disrupt the trial with a view to induce an irregularity to gain a subsequent benefit. We have noted that the learned trial judge took abundant care to safeguard the interest of the accused at every juncture but the appellant remained adamant."
Opinion
20. Having discussed the law on the subject we take up the case before us. Perusal of the record reveals that on 29.10.2016 the Appellant was produced in custody before the learned Addition al Sessions Judge who framed charge against him under Section 9(c) of the Act. He pleaded not guilty whereupon the prosecution evidence was summoned. The case was fixed for hearing on a number of dates but was adjourned as the PWs did not turn up.
On 6.2.2017, Mr. Javed Iqbal Awan, Advocate, entered appearance on behalf of the Appellant but even on that date no prosecution witness was present so the case was put off. On 8.3.2017, examination-in-chief of Tehseen Shahzad 1017/C (PW-1) was recorded but his cross-examination was deferred as the second recovery witness, Muhammad Akbar/SI (PW-2), who was also the Complainant and Investigating Officer of the case and transmitted the parcel of the recovered substance to the PFSA, was not in attendance. The learned counsel for the Appellant genuinely desired that both the witnesses should be cross-examined on the same day. On the next three dates, i.e. 17.3.2017, 3.4.2017 and 5.5.2017, neither Tehseen Shahzad/C nor Muhammad Akbar/SI attended the Court which constrained it to issue non-bailable warra nts of arrest against them. Finally , on 25.5.2017, they made themselves available for evidence but on that date Mr. Javed Iqbal Awan, Advocate, was absent. Nevertheless, the learned Additional Sessions Judge decided to proceed with the case asking the Appellant to cross-examine the two witnesses himself. On 7.3.2017, the learn ed Court recorded the statement of the Moharrar , Muhammad Nasir Khan 3176/MHC (PW-3), who was a formal witness. On that date Mr. Javed Iqbal Awan, Advocate, was in attendance and he cross-examined him. On 31.8.2017, the prosecution closed its evidence whereafter the Court examined the Appellant under Section 342 Cr.P.C., heard the arguments of the learned counse l and announced the impugned judgment.
21. Admittedly , the prosecution case rests on the evidence furnished by three witnesses out of whom PWs Tehseen Shahzad/C and Muhammad Akbar/SI are pivotal. On 8.3.2017 when their testimony was recorded the Appellant did not have the assistance of his counsel. He was thus deprived of a fair opportunity to defend himself which impinges on his fundamental right.
22. The contention of the learned Deputy Prosecutor General that the Appellant was not prejudiced because the learned trial Court had afforded him an opportunity to cross-examine the witnesses himself has no merit. Cross- examination is the great legal engine ever invented for the discovery of truth. In Muhammad Hussain alias Julfikar Ali v. State (Govt. of NCT), Delhi (AIR 2012 SC 750 = 2012 SCMR 1610 ) the Supreme Court of India observed that "the fate of the criminal trial depends upon the truthfulness or otherwise of the witness and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected." However , S.C. Sarkar in his book Law of Evidence (18 Edition) is more elaborate. He writes: "The objects [of cross-examination] are to impeach the accuracy , credibility , and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party [Powell, 9 Ed p.532]. The exercise of this right is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory and description are all fully investigated and ascertained and submitted to the consideration of the jury, who have an opportunity of observing his demeanour, and of determining the just value of his testimony. It is not easy for a witness, subjected to this test, to impose on a court or jury, for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances, to which a cross-examination may be extended". Nevertheless, it must always be kept in mind that cross-examination is an art. As Sutherland J. pointed out in Powell v. Alabama (supra), a layman even if intelligent and educated is not trained in this skill and cannot effectively cross-examine a witness. The courts have thus consistently held that the cross-examination by an accused himself on a prosecution witness can neither be equated nor substituted with the cross-examination by a counsel. In this context reference may usefully be made to Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Muhammad Shahid v. The State (2010 PCr.LJ 812), Ghulam Sarwar v. The State (2010 MLD 1775), Ghulam Rasool Shah and another v. The State (2011 SCMR 735), Wapar and another v. The State (2013 PCr.LJ 1279) and Sadam Hussain v. The State (2018 MLD 1025). Resultantly, the learned Law Officer's contention is repelled.
23. It is not the prosecution's stance that the Appellant was procrastinating the trial. In fact, the resume of the proceedings given above reflects that the decision of the case was delayed because of non-availability of the prosecution witnesses. In the circumstances, the learned Additional Sessions Judge committed material irregularity while conducting the proceedings on 25.5.2017 and not affording an opportunity to the Appellant to produce his counsel.
24. We are cognizant of the fact that there is increasing tendency on the part of the accused persons to stymie the trial by not producing their counsel, particularly in capital sentence cases. Courts cannot become hostage to such malpractice. The Hon'ble Supreme Court of Pakistan has already held in Ghulam Rasool Shah 's case, supra , that in such a situation the Court should appoint a defence counsel at State expense and proceed with the trial.
Relevant excerpt is reproduced hereunder: "Having considered the case of Appellants, we are of the view that the Appellants should be given time to engage a counsel privately of their own choice, failing which the learned trial Court shall provide them the defence counsel at State expense of their choice out of the list maintained by the Court. If the accused fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expense, the Court will be at libertyth th to proceed with the trial and the defence counsel so appointed shall be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence."
Similar view was expressed in Abdul Ghafoor v . The State (2011 SCMR 23 ).
25. There are some authorities which argue that if the accused's counsel is not available to cross-examine the witnesses, the trial Court may do that itself by invoking Section 540 Cr.P.C. and Article 161 of the Qanun-e- Shahadat, 1984. This is a contentious issue which requires detailed deliberation that cannot be undertaken in this case. Hence, we leave it for some other time.
Order of the Court
26. In view of the above discussion, we hold that the impugned judgment dated 30.11.2017 cannot be sustained.
Therefore, we allow this appeal, set aside the said judgment and remand the matter to the learned trial Court for a fresh decision after affording an opportunity to the Appellant to cross-examine Tehseen Shahzad/C and Muhammad Akbar/SI through his counsel. Inasmuch as we are remitting the case, we have not expressed any opinion on its merits. The learned Additional Sessions Judge is directed to conclude the trial as expeditiously as possible but not later than three months from the date of communication of this judgment and report the same to this Court.
1. https://en.m.wikipedia.org.
2. Ibid
3. This formulation is known as "Miranda W arning"
4. In Babar Hussain Shah and another v. Mujeeb Ahmad Khan and another (2012 SCMR 1235 ) the Hon'ble Supreme Court of Pakistan held the concept of fair trial and due process had always been the golden principles of administration of justice but after incorporation of Article 10A of the Constitution, it had become more important that due process should be adopted for conducting a fair trial and an order passed in violation of due process might be considered to be void.
5. Khatri and others v. State of Bihar & others [1981 SCR(2) 408], Suk Das and another v. Union Territory of Arunachal Pradesh (AIR 1986 SC 991)
6. Abdul Aziz and another v . The State (1984 PCr .LJ 530).
7. Kunnummal Mohammed and another v. State of Kerala (AIR 1963 Kerala 54), Abdul Aziz and another v. The State (1984 PCr .LJ 530)
8. Yaqoob alias Qobi v. The State and another (2014 MLD 69), Mehtab Ahmed v. The State and others (2015 YLR 1132).
9. Mr.Yahya Bakhtiar , Advocate v. The State through the Secretary , Ministry of Interior , Government of Pakistan, Islamabad (PLD 1983 SC 291), Niaz Ahmad v. The State (1984 PCr.LJ 1054), Shahsawar v. The State (1998 PCr.LJ 1758).
10. Khadim v . The Crown ( PLD 1954 Lahore 69 ), Muhammad Sharif v . The State (PLD 1973 Lahore 365).
11. Rab Nawaz v . The State and another ( 2011 MLD 1558 ).
12. Muhammad Yaseen alias Mithou and another v . The State (2010 PCr .LJ 1253).
13. Ghulam Shakhi v . The State (1979 PCr .LJ 1016).
14. Muhammad Waqar v. The State (1991 PCr.LJ 197), Walidad alias Dadoo Maachi v. The State (1997 MLD 1697 ), Muhammad Shahid v. The State (2010 PCr.LJ 812), Muhammad Yaseen alias Mithou and another v. The State (2010 PCr .LJ 1253).