ABDUL KARIM KHAN KUNDI, J.--- Without dilating upon the merits of the case, lest either side be prejudiced, herein it was found that the appellant was charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance, read with section 377, P.P.C. After facing trial on the said charges he was found guilty of both the charges and was accordingly convicted and sentenced therefor.
2. Charge under section 12 of the Ordinance is punishable with death or rigorous imprisonment extendable to 25 years and also whipping in case of imprisonment. The appellant was represented at the trial by a counsel engaged at his expense. Dr. Imran Mirza having medically examined the victim was produced as P.W.7. He detailed his findings of examination in his examination-in-chief part of the statement. He was not cross-examined for want of the attendance of the counsel for the defence. The witness was later on neither recalled nor re---examined by the Court with opportunity of cross-examination to the counsel for the defence. In his judgment the trial Court has, given due credit to the medical evidence and even commented upon doctor's non-cross- examination that no questions whatsoever were put to Dr. Imran Mirza (P.W.7) with regard to his opinion that sodomy had been committed with the victim and as such the medical evidence was completely inconformity with the ocular account. The trial Court has thus been found to have rather condemned the defence for having not cross examined the medical witness.
3. In Volume III Chapter 24-C of the High Court Rules and Orders it is provided that a person charged with committing an offence punishable with death should have legal assistance at his trial either in a Court of Sessions or in the High Court and if the accused is un-represented and cannot afford to engage a counsel the Sessions Judge shall make arrangement to provide counsel at Government expense. Section 340(1) Cr P.C. Provides that any person accused of an offence before a criminal Court may of right be defended by a pleader. This provision of law was interpreted in PLD 1962 Dacca 334 with reference to Galos Hirad and another v. The King AIR 1944 PC 93. The said case was from Somaliland where Poor Persons Defence Ordinance provided that an accused in a capital sentence case was entitled to have a lawyer assigned to him which provision was construed to have a right to be heard through a lawyer. On the above analogy the Dacca authority- proceeded to hold that the words right of being heard through lawyer in section 340(1), Cr.P.C. Partakes with the right of being heard by lawyer or making arguments.
4. We have a case before us in which a material prosecution witness furnished expert evidence and his evidence was also duly relied upon and made basis of conviction by the trial Court but he was not cross-examined due to the non-attendance of the counsel for the defence. Record does not say if the attendance of a counsel for the defence was intentional or otherwise wilful but even if in a case punishable with capital sentence of death, the counsel for the defence abstains or neglects to attend the Court still the Court shall not proceed with the trial of the accused un-represented by a counsel and there shall be procured the attendance of the counsel for the defence or his power of authority shall be determined and the Court shall adjourn the proceedings till there is made arrangement of a counsel by the accused himself or by the State at its expense. The provisions of section 540, Cr.P.C. Are also meant to meet such eventuality as to recall and re-examine a witness for the just decision of the case. Thus, under section 340(1) an accused has a statutory right to be defended by a counsel and under the High Court Rules and Orders no trial of an accused for a capital sentence of death can proceed without providing legal assistance to an accused and in the absence of the arrangement of a defence counsel by the accused, there is shall be appointed a defence counsel by the Government at its expense.
5. Herein we have found that the appellant was prejudiced for want of legal aid by having refused him the opportunity of cross-examination of a material prosecution witness, who was an expert witness and who could not be cross---examined by a lay man like the illiterate appellant. The proceedings against him tantamount to negation of a fair trial. We would accordingly order his retrial and consequently accept his appeal, set aside the conviction and sentences and order the trial Court to recall and re-examine the medical witness with opportunity of cross-examination to the defence counsel and thereafter to examine the accused under section 342, Cr.P.C. Followed by accused's examination on oath under section 340(2), Cr.P.C. If he volunteers to give evidence on oath in disproof of the charges and allegations made against him at the trial. Case remanded.