' The appellant has called in question the judgment, dated 29-3-2000 passed by the learned 6th Additional Sessions Judge, Hyderabad in Sessions Case No,347 of 1992, arising out of Crime No,37 of 1992 Police Station Pinyari under section 302, P.P.C., whereby the appellant was convicted and sentenced to suffer R.I. For life and to pay fine of Rs,50,000. In case of the recovery of fine it was to be paid to legal heirs of deceased Muhammad Aslam and in default of payment thereof the appellant was to undergo R.I. For six months more.
1. The facts of the prosecution case in nutshell are that on the complaint registered by complainant Muhammad Ramzan at Police Station Pinyari, the present appellant was involved by the police for committing the murder of deceased Muhammad Aslam. The accused on the basis of evidence, so collected against him was sent up to stand trial for the offence under section 302, P.P.C. The learned trial Court framed the charge to which the appellant pleaded not guilty and claimed to be tried. Eventually the evidence was recorded in the case.
2. The learned trial Court, on appraisal of the evidence adduced on record came to the conclusion that the appellant was guilty of the murder of deceased Aslam and therefore, convicted him in terms as stated above.
3. The learned counsel appearing for the appellant at the very outset, pointed out that the learned trial Court convicted the accused without hearing his counsel. He states that since the appellant was not in a position to engage an Advocate therefore, the defence counsel was provided to him at the State expenses as the accused was being tried in a case involving capital punishment.
Learned counsel states that the accused/appellant was condemned unheard, and on this score aldne the judgment of conviction could not be maintained. In support of his above arguments learned counsel placed reliance upon PLD 1962 Dacca 334 and 1994 PCr.LJ 695.
4. Mr. Anwar Ansari learned counsel appearing for the State has frankly conceded that the judgment could not be maintained in view of the authorities relied upon by the learned counsel for the appellant. He, therefore, raises no objection if the judgment is set aside and the case is remanded for fresh decision.
5. I have considered the arguments and perused the authorities relied upon by the learned counsel for the appellant.
6. Section 340 of the Cr.P.C., speaks of the right of being defended by Lawyer, which has been construed to be a right to be heard through a lawyer. It can certainly be said that the words right of being defended by a pleader occurring in section 340 of the Code speak of a. Right of being heard through a lawyer or making arguments.
7. On the perusal of the judgment impugned in this appeal it does not transpire as to ether the learned counsel for the appellant /accused was heard before passing of the judgment. The perusal of the case diary also reveals that on 27-3-2000, the arguments were advanced by the. Learned D.D.A., while the learned counsel for the appellant was not present. Though there appears to be some sort of lapse on the part of learned defence counsel, even then the accused shall not suffer on account of any lapse on the part of his counsel. It is well-settled principle of law that nobody should be condemned unheard and that no order adverse to the interest of anyone should be passed, unless he has been given fair opportunity of hearing.
' Learned State Counsel has rightly agreed to remand of the case on setting aside the impugned judgment.
8. In the case of Sikandar Ali Nadeem alias Sakko v. The State (1994 PCr.LJ 695) a Division Bench of this Court was pleased to observe that the learned trial Judge committed gross violation of principles of natural justice while he convicted the appellant without hearing defence counsel, as nobody should be condemned unheard. Eventually the conviction and sentence of the appellant were set aside and the matter was remanded to the trial Court for hearing the arguments of the defence counsel as well as prosecution side and later decides the case.
9. For the foregoing reasons I set aside the conviction and sentence of the appellant and remand the matter to the trial Court for hearing the arguments of defence counsel as well as prosecution side and re-decide the case.
10. In view of the fact that the matter is quite old I would direct the learned trial Court to dispose of the matter as expeditiously as possible preferably within a period of three months from the date of receipt of this order. The learned counsel for the appellant who is appearing in the trial Court undertakes to appear and proceed with the case without fail and shall not seek unnecessary adjournments so as to conclude the same by December, 2001. Office is directed to return the R & Ps of the case immediately.