1. ' The applicant/accused Allah Bachayo and others have challenged the order dated 4-5-1998, passed by the learned 1st Additional Sessions Judge, Badin, whereby the learned Judge has dismissed application under section 540, Cr.P.C. Moved by the applicants for recalling of P.W.
2. Muzzafar Ali for the purpose of further cross-examination.
3. ' Briefly, stated the facts of the case are that the applicants alongwith co- accused Nim son of Usman Mangrio, are facing trial in Sessions Case No,43 of 1985 in the Court of learned 1st Additional Sessions Judge, Badin, under sections 302, 504 and 34, P.P.C., as a result of F.I.R. Lodged by the complainant Ahmad Mangrio on 28-5-1985 at Police Station Tando Ghulam Ali, District Badin. The allegations against the applicant and co-accused Nim are that they had allegedly caused death of deceased Muhammad Ayoob.
4. ' The applicants were represented before the trial Court Mr. Abdul Hakeem Memon, Advocate, while co-accused Nim Mr. Hussain Bakhsh Talpur, Advocate.
5. ' The car was fixed in the trial Court on 14-3-1998 when P.W. Muzzafar Ali was in attendance, who was earlier examined on 19-2-1997 by the prosecution but his further examination-in-chief was reserved for want of case property.
6. ' The case diary of the learned trial Court dated 14-3-1998, produced by the applicants, shows that Mr. Abdul Hakeem Memon, Advocate for the applicants, was absent when the case was called by the learned trial Court ans only Mr. Hussain Bakhsh Talpur was present, who was the counsel for the co-accused Nim. The applicants, as per case diary, moved the application for appointment of some other counsel on State expenses. The application of the application was allowed by the learned trial Court and Mr. Hussain Bakhsh Talpur, for the Go-accused Nim was appointed to defend them. However, no time was given by the learned trial Court to Mr. Hussain Bakhsh Talpur to prepare the case for defence as such he proceeded with the case and cross-examined P.W.
7. Muzzafar Ali for all the accused including the applicants.
8. ' The late diary of the case shows that Mr. Abdul Hakeem Memon, learned counsel for the applicants, also reached the trial Court and immediately moved application under section 540, Cr.P.C. For recalling P.W. Muzzafar Ali for the purpose of further cross-examination. The learned trial Court ordered for issuance of notice and fixed the case on 21-5-1998 and ultimately on 4-5-1998 dismissed the application by impugned order.
9. ' The present criminal revision was admitted to regular hearing of 15-5-1998. On 22-5-1998 this matter was fixed for hearing M.A. 316 of 1998 when at the request of both the learned counsel the revision was heard as the short point was involved in the matter.
10. ' Syed Madad Ali Shah learned counsel for the applicant has attacked the impugned order on the ground that the learned trial Court could not have appointed other Advocate for the applicants, who had already engaged a senior counsel to defend them in a murder case; that the learned trial Court should have waited for Mr. Abdul Hakeem Memon, who is an outstation Advocate and have adjourned the case to the next day or to some other short date. The learned counsel further submitted that Mr. Hussain Bakhsh Talpur, was appearing for the co-accused Nim, who had adverse defence than the applicants. The learned counsel has further contended that in any case the trial Court should have granted at least one week's time to Mr. Hussain Bakhsh Talpur to prepare the case and could not have proceeded with the case immediately. The grievance of the learned counsel for the applicants is that the application for appointment of Advocate on state expenses was moved by the applicants under the direction of the learned trial Court and that only question put by Mr. Hussain Bakhsh Talpur to P.W. Muzzafar Ali, who is Investigating Officer of the case, was a damaging question and cased serious prejudice to the case of the applicants. The learned counsel, therefore, stressed that recalling of P.W. Muzzafar Ali will be essential to the just and proper decision of the case.
11. ' In support of his contention, learned counsel has placed reliance on the decisions reported as.Purna Chandra Mondal v. The State (1970 PCr.LJ 746), Muhammad Sharif v. The State (PLD 1973 Lahore 365) and Roshan Ali v. The State (1988 PCr.LJ 1464).
12. ' I have heard Syed Madad Ali Shah, learned counsel for the applicants and Mr. Ali Azher Tunio, learned A.A.-G., for the State. Latter has conceded to the arguments of learned counsel for the applicants. I have also perused the impugned order and the deposition of P.W. Muzzafar Ali as well as law cited at bar .
13. ' In the case of Purna Chandra Mondal (supra) a Division Bench of Dacca High Court held that the trial of pauper accused charged for murder commencing immediately upon appointment of an Advocate by Sessions Judge without giving proper opportunity to prepare case for defence is in denial to the prisoner of the right conferred on him by section 340, Cr.P.C. Consequently, in reported case trial was held to be not according to law and fresh trial was ordered.
14. ' In the case of Muhammad Sharif (ibid) a Division Bench of Lahore High Court, in similar situation held that right to be defended by a pleader is a statutory right of accused, particularly on a charge entailing capital punishment, cannot be abridged by appointment of a counsel a day or two before trial and at least one week's time to be allowed in such cases.
15. ' In the case of Roshan Ali (above) a learned Single Judge of this Court allowing criminal revision ordered recalling of the complainant for further cross-examination under section 540, Cr.P.C. On the ground that further examination of the complainant was necessary as important questions, relating to the provisious enmity, contradictions in the depositaons and F.I.R. Had been left over by the Advocate for pauper accused.
16. In the present case, the applicants were represented by a senior counsel Mr. Abdul Hakeem Memon and Mr. Hussain Bakhsh Talpur was counsel of the co-accused Nim and defence of applicants/accused and co-accused is said to be different and adverse to each other, as such, appointment of Mr. Hussain Bakhsh Talpur, Advocate for applicants was improper and prejudicial to the case of the applicants. The grievance of the applicants also seems to be correct as copy of deposition of P.W. Muzzafar Ali shows that Mr. Hussain Bakhsh Talpur, so far his client Nim is concerned, has cross-examined the witness at length but for the applicants the learned Advocate has put only one question which is reproduced below:-- "cross to Mr. Hussain Bakhsh Talpur, for remaining accused a pauper Advocate.
17. ' It is incorrect to suggest that the hatchets which were recovered front the accused persons are available in the market."
18. The question put by Mr. Hussain Bakhsh Talpur, according to the learned counsel for the applicants was not only prejudicial to the case of the applicants but it has damaged the defence of the applicants.
19. The learned Trial Court in haste and without waiting for the Advocate for applicants, who is stated to be practising at Tando Muhammad Khan wrongly appointed Mr. Hussain Bakhsh Talpur, for the applicants.
20. The learned Trial Court either should have adjourned the case to a short date or appointed other independent senior counsel for the applicants. In such an C eventuality, counsel so appointed was to be afforded sufficient time to prepare the case by obtaining proper instructions as held in Muhammad Sharif (supra) - and Purna Chandra Mondal (above).
21. In view of this position, the impugned order is against law and principles of natural justice and applicants were seriously prejudiced in their defence. Case diary showed that Mr. Abdul Hakeem Memon, reached the Trial Court and moved application under section 540, Cr.P.C.##T## on the same date, which had, prima facie, proved the fact that action of the learned Trial Court in appointing Advocate for the applicants and proceeding with the case on the very same day was in haste and against the law.
22. ' The leaned A.A.-G. For the State has, therefore, rightly conceded in not supporting such an order, which is not sustainable both in law, equity and principles of natural justice.
23. The upshot of the above discussion is that criminal revision application is allowed and the impugned order dated 4-5-1998 is set aside, with the result that the application under section 540, Cr.P.C. Filed by the applicant for recalling P.W. Muzzafar Ali, Investigating Officer, stands allowed.
24. The learned Trial Court is directed to re-examine the witness for further cross-examination by Mr. Abdul Hakeem Memon, for the applicants, who should be provided full opportunity to cross- examine the witness.
25. Revision .