FAKHRUDDIN H. SHAIKH, J.----The petitioner was, convicted on the plea c; guilty for offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to R.I. For two years and to pay a fine of Rs.500 or in default of payment of fine to undergo further S.I. For six months and to whipping numbering one stripe by the learned Additional Sessions Judge, Rawalpindi by his judgment, dated 5-11-1984.
2. The allegation against the petitioner was that 85 grams of heroin was recovered from her vaginal cavity by the police. The case was registered on 12th July, 1984 i.e. The same day when the heroin is said to have been recovered from her. Challan was submitted in the Court of the learned Additional Sessions Judge, Rawalpindi on 31-7-1984. Copies of the documents i.e. Police statements etc. Were supplied to the petitioner on 10-10-1984. All these copies were in Urdu. The case was taken up for the first time by the trial Court on the 30th October, 1984 when charge was read over to the petitioner in English. The petitioner pleaded guilty but to the extent of 81 grams of heroin only and not 85. Her plea was recorded by the trial Court and her signature was obtained thereon.
3. On the same day, the petitioner also made an application requesting the trial Court to appoint a counsel to defend her at the State expense. The learned trial Court on the same day dismissed the application saying that Vol. III, Chapter 24 Part C of the High Court Rules did Rot entitle an accused to be provided with defence counsel at State expense in case which does not relate to death penalty. After rejecting this application the learned trial Court recorded the conviction and sentence as stated above.
4. The main contention of Mr. Muhammad Salim Shaikh, the learned counsel for the petitioner is that proper opportunity was not afforded to the petitioner to engage counsel to defend her. So far as counsel at State expense is concerned, we generally follow the High Court Rules which clearly say that such counsel is to be engaged in cases where death penalty is involved. Of course, benefit of State counsel may be given to the accused person in exceptional circumstances in cases not involving death penalty. In the present case there is no exceptional circumstance. We, therefore, have no reason to take exception to the order of the learned trial Court rejecting the application of the petitioner for appointing counsel at State expense. Moreover, State counsel is to be appointed in the case of an accused who is unable to appoint a counsel herself /himself. In the present case, on he very next day of reading over the charge, Mr. Muhammad Salim Sheikh had, filed power of attorney on behalf of the petitioner, which shows 1 hat she was not unable to obtain the services of a counsel.
5. However, we feel that proper opportunity in this case was not afforded to the petitioner of defending herself. The copies of the police statements of witnesses and the memo of recovery were not supplied to her in the language which she understood. The learned State counsel conceded that on this ground the case can be remanded to the trial Court to allow the petitioner to go through all the documents which should be translated in the language which she understood i.e. English.
6. According to section 265-C, Cr.P.C. Prerequisite to framing of charge against an accused person is supplying of copies of: (a)the first information report; (b)the police report; (c)the statements of all witnesses recorded under sections 161 and 164, and (d)the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any; at least seven days before the commencement of trial. The accused/ petitioner is a British national and it is not disputed that she does not know Urdu. Copies of documents stated above, were in Urdu which were supplied to the petitioner. Till the date of commencement of the B trial, she had not the benefit of expert legal advice. Hence, she was-- not in a position to make up her mind about proper reply to the charge, on the basis of Urdu documents supplied to her. We are of the view that copies of documents mentioned in section 265-C , Cr.P.C. Should be supplied to an accused in a language which he understands, unless he is represented by a counsel engaged before commencement of trial. Provisions of S. 265-C are mandatory, non-compliance of which shall vitiate the trial. We are of the view that under the circumstances stated above the provisions of section 265-C have not been properly complied with. In this view of the matter, we allow this petition and set aside her conviction and sentence and remand the case to the learned Additional Sessions Judge for fresh trial with the direction that the trial should be concluded within two months. Since the petitioner has now engaged a counsel, we hope that the same counsel shall continue to appear before the trial Court, otherwise the petitioner shall be at liberty to engage any counsel of her own choice. The petitioner is on bail granted by this Court. She has been directed to appear before the trial Court on 6-10-1985. The learned trial Judge shall be at liberty to consider whether or not she should continue on bail during the trial.