ORDERSHAFI MOHAMMAD, J.- Applicant Mohammad Iqbal is an accused of an offence under section 302/307/34 PPC arising out of an F.I.R. No.103/91 registered at Pit. Bahadurabad, Karachi and on the said charge he has been sent up for trial before 1st Additional Sessions Judge, Karachi East.
2. On behalf of the applicant/accused the present advocate (who seems to be the 4th advocate of the applicant moved an application under section 340 Cr.PC, before the trial court on 2.4.1994 and in continuation of the same application, one more application under the same section was also submitted on 9.4.1994. The trial Court after hearing the learned counsel for the accused, APP for the State and the advocate for the complainant dismissed both the applications vide its order dated 18.4.1994. It is notable that the trial Court as well as the present advocate for the applicant have used the term "pauper advocate" which does not seem to be a proper and respectable term for an advocate. The word "pauper" is a Latin word which means "a poor person who lives on charity, especially on tax-supported charity". It would be better to use the words "advocate for pauper accused" or "pauper's advocate" or advocate at State expenses because such an advocate gets fees for his professional duties and not the charity.
Being aggrieved by the said order of the trial Court, application in hand was brought before this Court under section 430 read with section 561-A Cr.P.C, with the prayer that the order of the trial Court be set-aside, entire proceedings done till date be quashed and directions be issued for fresh trial.
3. On facts, the applicant and co-accused Majid Latif were alleged to have committed murder of one Adnan Farooqui and had caused serious injury to a person namely, Furqan Farooqui with their S.M.G. Rifle during the course of their duties as police-constables. The Court, after receipt of the challan, supplied copies of all the documents as required under section 265-C Cr.P.C, separately to both the accused on 10.2.1992 and even, on the grievance of the learned defence counsel that those documents were not legible, another set of legible documents was provided to him on the same day. After framing the formal charge on 12.5.1992, evidence of two witnesses, namely Ayaz and Shakil was recorded and they were cross-examined at great length by his defence counsel namely, Jawaid Haider.
4. On 20.5.1993, an application was moved by accused Mohammad Iqbal wherein he stated that his old father had sold every-thing to bear the expenses of his case and his family had nothing more to pay any fees to his defence counsel. He, therefore, requested the Court to appoint an advocate on State expenses out of the for advocates named by him. These names included the names of Mr Azizullah Shaikh, Abdul Qadir Halepota, Iqtidar Ali Hashmi and Sarfaraz Khan Tanoli.
However, the Court appointed Mr. Hamid Khan Durrani on 20.5.1993 to defend the applicant at State expenses. After about 10 days, the accused moved another application stating therein that the complainant party is very rich and they have engaged three advocates. He alleged that the advocate appointed by the Court is un-experienced and perhaps he had not completed two years in his profession. He further stated that if the complainant party had the services of public prosecutor besides being assisted by three private advocates, then there seems no reasons that he should not be provided an advocate of his on choice and if the trial Court is unable to provide any suitable advocate, then time be granted to him so that he could request the Chief Justice of Sindh High Court for the same. The Court dismissed the application after observing that the learned counsel appointed at State expenses was appearing in seven other murder cases with an experience of nine years. It is, however, important that the said learned counsel moved an application on the same day i.e. 30.5.1993 that he had cross-examined P.W.-3 namely, Faisal without having copies of statements recorded under section 161 Cr.P.C, but the Court repelled this claim because all the required documents had been supplied to the accused on 10.2.1993 as required under section 265-C Cr.P.C. The trial Court also observed that Mr .Durrani conducted the cross-examination with great ability. It appears from the impugned order that Mr.Durrani filed an application on 17.7.93 to allow him to withdraw his services to defend the accused on account of the conduct of the accused hence the Court appointed another advocate namely, Amanullah Khan to defend the accused at State expenses but these facts were totally suppressed by the learned counsel not only at the time of arguing the application but were also not mentioned in the application in hand. Such conduct can never be appreciated by the Court because the purpose of such suppression can be nothing but to keep this court in darkness regarding certain important facts.
5. It has been contended by the learned counsel for the applicant accused that, as contrary to the mandatory provisions of Section 340, Code of Criminal Proceduren not a single document connected with the case was supplied to the advocate appointed at State expenses and this fact was brought to the knowledge of the trial Court through an application moved by the advocate before examining the witnesses namely, Faisal Rasheed and Farhat Ejaz. It was, therefore, alleged by the learned counsel that the learned trial Court has deliberately violated the mandatory provisions of Section 340 Code of Criminal Procedure, thereby vitiating the entire proceedings not only conducted by the Court before 20.5.1993, but also oa 30.5.1993 and thereafter upto the part examination of P.W.No.10 on 53.1994.
6. For ready references, sections 340(1) Cr.P.C, and 265-C Cr.P.C, are reproduced below before considering the contention of the learned counsel for the applicant: "340 (1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader." "265-C.-
(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:-
(a) the first information report;
(b) the police report;
(c) the statements of all witnesses recroded under section 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;" Section 340 Cr.P.C, consists of two sub-sections. Sub-section (2) of Section 340 was substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985) on 21.2.1985 but for the purpose of deciding the present application in hand only Sub-Section (1) of Section 340 is relevant. When the attention of the learned counsel was drawn to the contents of Section 340 (1) Cr.P.C, as well as to the fact that copies of the statements of witnesses recorded U/S 161 Cr.P.C, had been provided to the accused, the learned counsel contended that when the new defence counsel appointed by the Court had submitted an application that he had no such copies with him, then it was the duty of the Court to provide fresh set of such documents tQ such an advocate notwithstanding to the fact that such copies had already been provided to the accused. I am afraid to accept such novel contention of the learned counsel because if such contention is accepted, then a most dangerous precedent would be established, in presence of which no case can ever come to an end. It would become a weapon in the hands of all dangerous criminals to delay the prosecution case by go-on changing their advocates by now and then and every new advocate will refuse to proceed with the case unless a new set of documents mentioned in section 256-C Cr.P.C, is provided to him by the Court.
The requirement of Section 265-C Cr.P.C is only to supply the documents, mentioned in the Section, free of cost to the accused, and this requirement of law was fulfilled by the trial court on 10.2.1992. It is not prohibited that such documents should not be provided to the defence counsel. Naturally, if an accused is being defended by an advocate, whether appointed by the Court at State expenses or engaged by the accused himself at his on expenses, then the documents U/S 265-C Cr.P.C, would be provided to him for and on behalf of the accused to defend him. This section does not say that every newly appointed advocate must be provided a fresh set of documents by the Court.
7. It has been alleged by the learned counsel that the advocate appointed by the Court for the pauper accused was not upto the mark because (be accused, his father and relatives had made hectic efforts to find out whether the aforesaid learned advocate was capable to defend the applicant in Such Important case and then being satisfied that he was not upto the mark, submitted another application on 30.5.1993. The learned advocate of the applicant, therefore, contended that the trial court considered it only a "formality" to appoint an advocate without taking into consideration the competency and capability of such advocate to defend a pauper accused. It is strange that the learned counsel did not challenge the competency of the third advocate namely Amanullah Khan. However, in support of his contention, the learned counsel relied upon the cases reported in 1993 MLD 1414, 1989 P.CrU. 469, PLD 1983 S.C. 426 and especially relied upon a judgment reported in AIR (22) 1942 Patna 90 wherein the following observations, made by a Division Bench in a case reported in AIR 1938 Patna 153, were reproduced which run as under:- "We desire to make some remarks about the defence of prisoners who are too poor to instruct lawyers on their on account. Those whose duty it is to select lawyers to defend at the expenses of the Crown should not treat the selection as a matter of patronage for the benefit of the lawyer so appointed. The selection should be made from among young men of marked ability. We have frequently observed, that the persons actually appointed do their work very badly and conspicuous opportunities for cross-examination and obvious arguments are entirely ignored. In such circumstances also the trial Judge should remember that he has the duty not only to the prosecution but to the defence. He has the police diary in front of him and should use his greater experience to cross-examine the witnesses when he sees that the defence lawyer is incompetent.
He should not do this unnecessarily but only when it is desirable in the interest of justice." I am sure that the learned counsel had not gone through the said judgment properly because if he had done so, he would not have made such allegation against any member of the Bar without any supporting evidence. The cited case was related to a period, when the committing Magistrate's Court had to hold enquiries, before sending the case to the Session Court. When the matter came before the Division Bench of Patna High Court, the Hon'ble Judges found that lawyer engaged by the Sessiuon Court at the expenses of the Crown (means State) to defend the pauper accused had conducted the defence in a most perfunctory manner. Thus there was evidence against the advocate regarding his performance tad on account of those reasons, the learned members of the Division Bench gave the above observations. I cannot estimate the expected feelings of the learned advocate (or the applicant if such kind of remarks and allegations bad been made against him also by aby accused.
When I asked the learned advocate to point out any question which was necessary to be asked by that advocate and was not asked by him or any question which should not have been asked but was asked by him to damage the case of the accused, the learned advocate -not only failed to point out such question but also avoided to answer this question. It clearly shows that the learned advocate had nothing to justify his allegations and sole purpose of adopting such path was nothing but to delay the proceeding. No doubt, the learned counsel is an aged and respectable member of the bar but no such right can be given to any advocate, how senior he may be, to level such allegations against any other advocate without any supporting evidence it is necessary to point out that neither the Court had declared the advocate for pauper accused to be incompetent nor there was any evidence against his competency.8. It has been contended by the learned counsel that the applicant/accused has a right to have an advocate of his on choice according to the requirement of Section 340 Cr.P.C. Therefore, if an accused shows his dissatisfaction about an advocate appointed by the Court at State expenses then any proceedings conducted by such advocate should be considered against the spirit of section 340 Cr.P.C.I am fully aware of this reality, although not pointed out by the learned counsel, that it is not only the Code of Criminal Procedure which gives right to an accused to be defended by an advocate but it is also the constitutional fundamental right of an accused that such an accused shall not be denied to consult and be defended by a legal practitioner of his choice as contemplated in Article 10 of the Constitution of Islamic Republic of Pakistan 1973. The comparison of such Articles would show that such a right is not limited to an accused only in Pakistan as is clear from the following:- PAKISTAN: "No person who is arrested shall be detained in custody without being infered, 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." (Article 10 (1) of the Constitution of Pakistan) INDIA: "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 he be denied the right to consult, and to be defended by a legal practitioner of his choice. "(Article 22 (1) of the Indian Constitution) USA.
Sixth Amendment:- In all criminal prosecutions the shall enjoy to a speedy and public trial and to be informed of the nature and cause of the accusation to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favour and to have the assistance of counsel for his defence."
10. The difference between section 340 Cr.P.C, and Article 10 (1) of the Constitution of the Islamic Republic of Pakistan is also of great importance. Section 340 (1) Cr.P.C > is limited in its term for the benefit of any person who is an accused of any offence and has been sent to face trial before a criminal court but this provision of Criminal Procedure Code is always'open to any amendment and repeal by ordinary legislation by the President of Pakistan who has powers to promulgate Ordinances under Article 89 under certain circumstances. But the Constitutional right f a citizen of Pakistan under its Article 10(1) is much wider and more effective because it is imune from any such legislative attack. Thisfundamental right of every citizen is general in nature and is applicable to all persons who are arrested notwithstanding to the fact whether they have committed an offence to face trial before a criminal Court or they have been detained under any preventive law without any commission of an offence. But the phrase "counsel of his on choice" does not mean that the State should provide an advocate to any pauper accused or detained person contentions. I think that the case of Sanwal Versus Khadim Hussain reported in 19S9 P.Cr.L.J. 469 is a complete answer to the contentions raised by the learned advocate because it supports the views of Mr.Sarwar Khan, the learned counsel for the State. It was observed in the cited case that:- "Change of a counsel does not entitle a party to re-examine the witness already examined by the prosecution and cross-examined by the learned defence counsel. The petitioner filed on behalf of the accused is vague and it has not been explained on what points these witnesses were not examined. Section 540 Cr.P.C.Reads as under:- "540. Any Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examined any person already examined, and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case."The Court is empowered to recall and re-examine the witnesses but there is an important condition, if the evidence of such witnesses appears to it essential to the just decision of the case. This condition has not properly been examined by the learned trial Court. In a similar case reported as Dilbar v. The State PLD 1986 Kar. 385, it was held that to allow a new counsel to re- examine the witnesses would be a dangerous precent and every time a new counsel who is engaged can claim to recall and re-examine the witness." Similarly in the case of Khadim Vs. The Crown reported in PLD 1954 Lahore 69 decided by a Division Bench, at appellate stage, it had been observed by the Hon'ble Judges that not only the learned committing Magistrate had not complied with Rule 1, Chap. 24, Part C, High Court Rules and Orders Volume III but it was also observed from the record that only a few un-important questions in cross-examination were put by the advocate appointed by the State which had |ittlc bearing on the case. Under such circumstances, the Court ordered for retrial The case of Mohammad Sharif Vs. The State reported in PLD 1973 Lahore 365 also does not support the contention of the learned counsel In this case, there was no proof that the counsel for accused was supplied with full record of the case as required by law. So far as the case of the present applicant/accused is concerned, there is proof of receipt of all documents by the accused as required under section 265-C Cr.P.C. Even otherwise, it is not the case of the applicant/accused that copies were not provided to the advocate appointed by the Court but his grievance was related to the competency of the advocate. No doubt the said advocate had stated in his application that he had no copies/statements of P.Ws under section 161 Cr.P.C, but he never alleged that such documents were never supplied to the accused or his previous advocate.
Similarly, the judgments reported in 1993 MLD 1414 & PLD 1956 Federal Court 129 relied upon by the learned counsel for the applicant do not support his contention because it was not said in any of the judgments that every new advocate was entitled to a fresh set of documents under section 265-C Cr.P.C.
13. Looking at the facts and the circumstances of the case from every angle, I see no justification to allow this application which is, resultantly dismissed. However, I would be failing in my duty if I do not express my displeasure over the delay occurred in the proceedings of this case which is pending in the Court since 1991.1, therefore, order that in future no hearing of this case would be adjourned by the trial court for more than seven days till the disposal of the case except under unavoidable circumstances or by consent of the learned advocates of the parties.