MUHAMMAD NAWAZ ABBASI, J.---This judgment will dispose of the Murder Reference No,147 of 1993 sent by the learned Sessions Judge, Chakwal, Criminal Appeal No,49 of 1993 filed by Sher Muhammad appellant against his conviction and sentence under section 302, P.P.C. Alongwith Criminal Revision No, 148 of 1992 filed by him against the orders dated 14-9-1992, 10-10-1992 and 7- 11-1992 of the trial Court on the subject of appointment of defence counsel and Criminal Revision No,48 of 1993 filed by Eida Khan against Sher Muhammad appellant for enhancement of sentence of fine and compensation under section 544-A, Cr.P.C.
2. The appellant in consequence of the trial for the allegation of committing the murder of Imdad Hussain upon the charge under section 302, P.P.C. Was convicted and sentenced to death with a fine of Rs.1,00,000 and in default of payment thereof to undergo R.I. For five years. The fine, if recovered, was ordered to be paid as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Vide judgment dated 22-2-1994, passed by the trial Court.
3. The criminal revision filed by Sher Muhammad against the order dated 14-9-1992 by virtue of which the trial Court appointed Mr. Mazhar Hussain, Advocate as defence counsel of the appellant and order dated 7-11-1992 through which the application moved by the appellant for setting aside the order dated 14-9-1992 of the appointment of the defence counsel of the appellant by the Court was rejected. The prayer of the appellant for grant of permission to cross-examine the prosecution witnesses by the counsel engaged by him was also rejected.
4. Without discussing the merit of appeal and murder reference, we feel necessity of disposal of fundamental issue of conduct of trial by an Advocate on behalf of appellant without his consent and desire.
5. The perusal of the order-sheet of the trial Court shows that after framing of the charge, the case was fixed for evidence on 20-7-1992 but due to the non-availability of defence counsel, namely, Ch. Afrasiab Khan, Advocate, for his pre-occupation before the High Court at Rawalpindi, the same was adjourned. On the next two dates i.e, on 1-8-1992 and 31-8-1992, no progress could take place either for the reason that the Court was busy in other matters or the evidence was not available.
On 14-9-1992, the learned defence counsel was again not present and the learned trial Court with the observation that the defence counsel was deliberately avoiding to appear before the Court appointing Mr. Mazhar Hussain, Advocate as defence counsel of the appellant at the State expenses, adjourned the case for recording the evidence to 16-9-1992 and thereafter to 22-9-1992 without any progress, on which date again due to the engagement of the trial Court in other matters, the case was adjourned to 10-10-1992. The learned trial Judge proceeded with the case and recorded the statements of eight witnesses including the eye-witnesses on this date in absence of the defence counsel with the observation that the appellant was informed that in case of non-availability of defence counsel engaged by him, the counsel appointed on the State expenses will conduct the case on his behalf. Before recording the remaining evidence, the appellant on 14-10-1992 moved an application for setting aside the order dated 14-9-1992 of the appointment of defence counsel and for permission to cross-examine the witnesses through his counsel, which having rejected vide order dated 7-11-1992, the appellant preferred Criminal Revision No,148 of 1992 before this Court. Pending disposal of the same, the trial was concluded and the appellant was convicted and sentenced to death vide judgment dated 22-2-1993.
6. Learned counsel appearing on behalf of the appellant contended that the appointment of the defence counsel on State expenses having made by the learned trial Court without the consent and desire of the appellant, he was denied to be defended by the counsel of his choice in violation of fundamental right provided under Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. The appellant having not allowed to cross-examine the witnesses by the counsel engaged by him, was caused a serious prejudice and virtually was disallowed to make his defence in proper manner.
7. Conversely, learned counsel for the complainant argued that intentional non-appearance of the defence counsel through the adjournments was with the purpose to prolong the trial and, therefore, in such circumstances the trial Court was fully justified to appoint the defence counsel and proceed with the case in the interest of justice. He argued that the appellant was not restrained to bring his counsel after the appointment of the defence counsel and no explanation being available for non-appearance of the defence counsel on the subsequent dates on which the prosecution witnesses were examined, the contention that the appellant was not provided opportunity to cross-examine the P.Ws. Has no substance.
8. We have heard the lengthy arguments of the learned counsel for the appellant and the complainant and thoroughly examined the record. Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 provides that no person shall be denied the right to be consulted and defended by the legal practitioner of his choice. The services of a counsel of the choice being a Constitutional right, under no law or order such right can be denied to any person. The Court is under Constitutional duty to provide the reasonable opportunity to a person or an accused to engage a counsel of his choice and the counsel who is engaged by an accused must be also given a reasonable opportunity to defend such accused. Undoubtedly, a person facing capital charge can be provided a counsel at State expenses on his request but if the accused has not expressed the intention to avail the services of a counsel at State expenses or is not willing to be defended by the counsel other than the counsel engaged by him or to be engaged by him, the Court is not supposed to appoint a counsel on his behalf and proceed with the case. It is only possible when an accused is not able to engage the services of a counsel of his choice and he has to be satisfied with the counsel arranged by the Court. The Constitutional provision giving the right to an accused to be defended by a counsel of his choice must be strictly observed and no person should be compelled to accept the services of a counsel not engaged by him. Generally, the arrangement of a counsel for an accused on State expenses is only made in cases in which the accused is not able to engage a counsel or he requests for such facility and in such cases the choice of a particular counsel is not available to an accused.
9. The counsel, who is engaged by an accused is under a legal duty to defend said accused and made himself available before the Court during the proceedings in the case, in which he has been engaged. The counsel engaged by the appellant did not attend the case on more than one dates with the result the trial Court appointed a defence counsel to proceed with the case. According to learned counsel for the accused at the trial and also in this appeal that on 20-7-1992, he was busy before the High Court at Rawalpindi Bench, but he offered no reasonable explanation for his non- attendance of the case at the trial as defence counsel on subsequent dates. However, non- appearance of defence counsel on a date which is fixed for evidence or even on more than one occasion does not validly permit the Court to curtail the Constitutional right of defending through a counsel of choice by making appointment of a defence counsel at State expenses by the trial Court to defend the accused without his consent. The unnecessary delay in the disposal of cases must be avoided but at the same time, undue haste, in the disposal of murder case without providing full and proper opportunity to the appellant to defend himself freely and through the counsel of his choice was not justified.
10. The argument that no prejudice was caused to the appellant in concluding the case on his behalf by the counsel appointed by the Court is not logical. The appellant was the best judge for making his defence and if the witnesses were not cross-examined as per his instructions and understanding, notwithstanding the fact whether some prejudice was caused or not, it would definitely be not to his satisfaction. The contention of the learned counsel for the appellant that eye-witnesses were not cross-examined in the light of the defence plea and consequently a serious prejudice was caused to him, is not unfounded. The defence plea taken by the appellant under section 342, Cr.P.C. Was not put to the witnesses to substantiate the same.
11. Be that as it may, the basic question requiring determination is that the learned trial Court without the request of the accused or obtaining his consent appointed the defence counsel to defend him in violation of the fundamental right of the appellant available to him under Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973. There was no extraordinary circumstance to deny this Constitutional right to the appellant and the order of appointment of defence counsel was not defendable on the ground that no prejudice was caused to the appellant or that the defence counsel appointed on the state expenses competently conducted the trial.
12. The defence counsel on State expenses was appointed on 14-9-1992 and the evidence of some of witnesses was recorded on 10-10-1992. The appellant shortly thereafter on 14-10-1992 moved an application for setting aside the order of appointment of the defence counsel and for permission to cross-examine the witnesses by the counsel of the appellant but the said application was rejected through a subsequent order dated 7-11-1992. The contention that the appellant did not object to the appointment of the defence counsel and that non-appearance of the counsel engaged by him on subsequent dates can be treated implied consent on the part of appellant to be defended by the counsel appointed by the Court having no force is repelled. The circumstance under which, without the request of appellant, a defence counsel on State expenses was appointed, and the application for permission to cross-examine the witnesses was rejected could not justifiably be considered proper for advancement of the cause of justice.
13. In the light of above discussion, we are of the considered view that the appellant was not provided fair opportunity to cross-examine the witnesses through a counsel of his choice and he having denied his Constitutional right provided under Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, the conviction and sentence is not sustainable. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant and remand the case to the learned Sessions Judge, Chakwal for retrial only for the purpose of cross-examining the witnesses, who were not allowed to be cross-examined by the defence counsel engaged by the appellant.
The prosecution as well as the defence shall have no right of production of fresh evidence on record. Learned trial Court after providing fair opportunity to the appellant of cross-examining the witnesses through his own counsel will conclude the proceedings within two months. The parties shall appear before the learned Sessions Judge, Chakwal on 10-9-1997. Record of the case shall be sent back to the Court of Session before the said date. The appellant shall remain in jail as undertrial prisoner, in the meanwhile.
14. This appeal and revision petition having allowed, the murder reference is answered in the negative.