MUHAMMAD AMIR MALIK, J.--- Col. F. Gorenkov a Diplomat of the Embassy of Union of Soviet Socialist Republics at Islamabad was murdered at about 1-30 p.m. On 16-9-1986. Zafar Ahmad appellant was charged for the same, tried by learned Sessions Judge, Islamabad and vide judgment, dated 1-7-1987 convicted and sentenced to suffer death and a fine of Rs.5,000 and also to pay a compensation of Rs.10,000 under section 544-A, Cr.P.C.
2. The matter was referred to this Court for confirmation of the death sentence under section 374, Cr.P.C. There is also an appeal (Criminal Appeal No.107 of 1987) against the conviction and sentence. Both the matters are proposed to be disposed of by a single judgment.
3. We have heard the learned counsel for the appellant, the State and have been taken through the record. Contention at the very outset has been raised that the trial of the accused was not in accordance with law. After hearing the learned counsel and going through the record, we are inclined to agree.
4. The record of the case indicates that at no stage was any counsel engaged by the appellant nor any appointed by the Court itself to defend him at the trial. The order sheet indicates that the appellant/accused was produced before the learned Sessions Judge on 1-2-1987 when the accused was in police custody. The case was adjourned to the next day i.e. 2-2-1987, On this date the accused was present in police custody and the case was adjourned to 15-2-1987 for supply of copies (as required under section 265-K, Cr.P.C). On 15-2-1.987 the learned Sessions Judge opined that " .... Accused may be of unsound mind and thus unable to defend himself...:' The learned Sessions Judge referred the appellant for medical examination. After conducting the proceedings under section 465, Cr.P.C. He concluded that the appellant was of sound mind. Order in this behalf was passed on 25-2-1987. The order of this very date indicates that the appellant was asked repeatedly if he could afford to engage a counsel and if not, whether one be engaged for him at State expense to which he categorically replied in the negative. It is also in the order that the appellant further told that if any counsel was engaged he would not advise him. In these circumstances, the learned Sessions Judge did not appoint any counsel even at State expense and proceeded with the trial. The accused was without any legal assistance. He even himself does not seem to have put a single question to any of the wintesses, produced by the prosecution. The inquiry/determination of unsoundness of mind or otherwise of any accused is a part of the trial. On the very first hearing the learned Sessions Judge had entertained the suspicion that the accused may be of unsound mind and entered upon the inquiry/determination of the unsoundness or otherwise as contemplated in section 465, Gr.P.C. This determination being a part of the trial, legal assistance should have been provided.
5. Under section 340, Cr.P.C. Any person accused of an offence before a criminal Court may as of right be defended by a pleader. It is also provided in Rules 1 and 2 of Chapter 24 Part C of the High Court Rules and Orders Volume III that every person charged with committing an offence punishable with death should be provided legal assistance and if the accused is unpresented or cannot engage counsel the Sessions Judge shall make arrangements to employ counsel at State expense and that too well in time to enable him to study the necessary documents (for the preparation of the trial). Learned counsel for the appellant has appropriately drawn our attention to the principle laid down in Khadim v. Crown PLD 1954 Lah. 69 wherein section 340, Cr.P.C. And Rules 1 and 2 Part C of Chapter 24 of the High Court Rules and Orders Volume III came up for consideration.
6. The upshot is that the appellant not having been provided the essential legal assistance to defend him at the trial, the trial is vitiated. We, therefore, accept the appeal, set aside the conviction and sentence and remand the case to A the learned Sessions Judge for holding the trial in accordance with law after providing proper legal assistance to the appellant. The reference is declined.