1. ' HAMOODUR RAHMAN, C. J.-This petition has been before us twice, namely, on the 15th and the 16th of April 1974. On the first occasion, it was contended that an appeal lay as of right under the Constitution of 1973. It was, however, later discovered that the sentence of the petitioner No, 1 had been enhanced by the High Court on the 12th of June 1973, before the Constitution came into force on the 14th of August 1973 and the petition for special leave had also been filed in June 1973. The Constitution not being retrospective, the appeal could not be claimed as of right in the present case.
2. ' On the second occasion, the learned counsel appearing in support of the petition prayed ,that special leave should be granted to the petitioners because, they were not represented at all in the High Court by any learned counsel of their own choice. Even the learned counsel engaged for them at State expense obtained no vaklatnama from the said petitioners, nor did he interview the petitioners in jail, nor did he, as he was entitled to do, argue against the convictions of the petitioners.
3. ' The petitioners, it appears, had not filed any appeal against their convictions either from jail or through any other learned Advocate. On an application in revision, by a nephew of the deceased, the High Court had, however, issued a Rule calling upon them to show cause as to why their sentences should not be enhanced from transportation for life to death.
4. ' This Rule, we have no reason to doubt was in accordance with the usual practice, served upon the petitioners in jail through the District Magistrate. The [normal practice is that, if a condemned prisoner is unable to himself engage a counsel for his defence, he prays that counsel at State expense may be engaged to appear for him. The order is then passed by the High Court before which the case is pending for the engagement of a counsel at State expense and a learned counsel is selected from a list maintained by the High Court with the approval of the Chief Justice of the High Court.
5. It is no doubt true that, under the Constitution, an accused person has a right to be defended by counsel of his own choice but not necessarily a State expense. He can engage any counsel he likes; but, when he is not able to engage one, then the choice is no longer available to him. He has A to be satisfied with the counsel assigned by the Court. In such cases, the counsel so engaged is not required to file a vakalatnama. If the condemned prisoner is not satisfied with the counsel, he can, of course, object to him; but there is nothing to show that, in the present case, the normal practice was not followed, or that the petitioners objected to the learned counsel engaged to appear on their behalf at State expense.
6. ' The learned counsel so appearing for an accused person at the appellate or provisional stage is under no legal duty to interview the accused in jail or to obtain his personal instructions, because, at this stage, he is only concerned with the case, as it transpires on the record, for, normally, no additional evidence can be brought in at this stage. However, if the learned counsel so desires, he can, if he considers it necessary, interview the accused in jail, with the permission of the Court. No legitimate complaint can, therefore, be made if the learned counsel engaged in the present case did not consider it necessary to interview the petitioners in jail.
7. ' As already stated, it is recorded in the judgment of the High Court that "so far as the convictions of the two respondents are concerned, these were not disputed by counsel for the respondents". We have no reason to think that the learned counsel engaged for the petitioners, who is a fairly experienced and responsible counsel, was not aware that, while answering a Rule for enhancement of sentence, he could also argue against the conviction itself. The fact that he did not do so must be because, after perusing the record, he must have been satisfied that no useful purpose will be served by arguing against the convictions. We have no reason to think that the learned counsel was either so ignorant or so incompetent as not to be aware of what his rights were in the Rule for enhancement and what he was doing. It must be presumed, until the contrary is proved, that he acted with due sense of responsibility and was under no misapprehension about his legal rights as counsel for the condemned prisoners. Learned counsel for the petitioners, lastly, sought to argue that, even under the provisions of the old Constitution of 1962, an appeal lay as of right, in a case where the High Court had enhanced the sentence from transportation for life to death. In support of this contention, be relied on a decision of this Court in the case of Sarwar v. The State (1). It appears that in this case three persons were tried and convicted under section 302/34, P. P. C. One was sentenced to death and the other two were sentenced to transportation for life.
8. They all preferred appeals to the High Court which also issued a suo motu notice to the two condemned prisoners, who had been sentenced to transportation for life, and ultimately enhanced their sentences from transportation for life to death. The report of the judgment of this Court shows that leave to appeal was actually granted to all the three under Article 58 of the Constitution of 1962, but it was observed that leave was granted because, the two whose sentences were enhanced would have had a right of appeal to this Court, and the case of the other, who was sentenced to death, was not distinguishable from their case.
(1) PLD 1969 SC 118 ' It is not very clear as to how this observation came to be made and yet leave to appeal had to be granted. If the two, whose sentences were enhanced, had a right of appeal, then there was no need to grant leave to appeal.
9. ' Be that as it may, this question subsequently came up for full consideration in the case of Rashid Ahmad v. The State (1). In this case the majority of the Court, after considering a large number of earlier decisions, came to the following conclusion:- ' it is only in a case where after setting aside an order of acquittal the High Court passes a sentence of death or transportation for life or as a Court of first instance passes such a sentence that an appeal as of right lies to this Court under Article 58(2)(b)."
10. ' This is the proposition of law that was adumbrated after accepting the enunciation of the rule of interpretation in the case of Muhammad Rafique v. The State (2) by Cornelius, C. J. Who "had held that notwithstanding the change in the language of Article 58(2)(b) of the Constitution of 1962, an intention to enlarge the scope of the appeal from that provided in Article 159(a) of the 1956 Constitution could not be inferred. Under Article 159 of the 1956 Constitution an appeal lay as of right only where the High Court had "on appeal reversed an order of acquittal of an accused person and sentenced him to death or transportation for life".
11. It is significant to point that, while the judgment in the case of Rashid Ahmad was pending announcement, the Provisional Constitution Order of 1969 came into force, and Article 6 of this Order reverted to the wording of Article 159 of the 1956 Constitution. The contention that, under the 1962 Constitution, an appeal, in the circumstances of this case, lay as of right not therefore, tenable.
12. The interpretation given by the Full Court in the case of Rashid Ahmad does not support this view, notwithstanding the observation in the case of Samar v. The State. The enunciation of law, in the case of Rashid Ahmad v. The State is the final word.
13. ' We are, therefore, unable to agree with the learned counsel that the petitioners had an appeal to this Court as of right or that they were entitled to special leave.
14. ' This Court does not grant special leave to appeal only on a question of sentence, particularly where the sentence is in every way a legal one.
15. ' This petition is, accordingly, dismissed.
(I) PLD 1969 SC 362 (2) PLD 1963 SC 226