A. M. SAYEM, J.-The prisoner has been convicted and sentenced to death by the Additional Sessions Judge of Khulna under section 302, P. P. C. Hence the reference for confirma--tion of the sentence by the learned Additional Sessions Judge under section 374, Cr. P. C. And the appeal by the prisoner for--warded by the Jailer under section 420, Cr. P. C.
As before us, the prisoner was defended at the trial at the expense of the State.
In view of the order we propose to pass it is not necessary to discuss the facts in detail. Suffice it to state that the prisoner was placed on trial on the basis of an F. I. R. Lodged at Dumuria P. S.' by one Rup Chand Mondal on the 4th January 1968, at 12-35 p.m. It was alleged that at 9 a.m. As deceased Adhir Kumar Mondal, a student of Class IX of the local school, reached near the house of one Sushil Kumar Mukherjee on way back home front the residence of the Head Master, the prisoner inflicted several injuries on him with a tree tapping `dao', including one cutting almost halt the neck, and further that on being apprehended upon chase the prisoner confessed his guilt before witnesses.
At the hearing before us, the learned Advocate appearing for the prisoner in effect pressed only one ground in support of the appeal. That ground is ground No. 6 of the petition of appeal forwarded by the Jailer.
The ground runs as follows:- "6. For that the accused was a poor man and was defended by State Counsel just at the moment when the trial started. The defence was not allowed any adjournment in spite of representation by the State Counsel. The accused was thus not given sufficient opportunity to defend him in Court.
This very fact vitiates the trial itself ab initio."
The grievance incorporated) in the above ground appearing in the petition of appeal, the learned Advocate submitted, found full support from order No. 1 of the Sessions record. This order needs being set out, omitting what has been said therein about selection of assessors.
The material portion of the order is as follows:- "20-10-69-Accused is produced from Jail `hajat'. The case is taken up for trial. The accused has no lawyer. Heard learned Public Prosecutor. It appears that the accused has no means to engage any lawyer. He is charged under section 302, P. SP. C., involving capital punishment. In the circumstances Mr. Emlak Hossain, Advocate, be appointed without any objection from the accused to defend him. Charge is amended at the instance of learned Public Prosecutor in presence of the accused and lawyer, read over and explained in Bengali to the accused who pleads not guilty and claims to be tried.
The learned Public Prosecutor or opens the case and examines witnesses . . . . . . .
In a faint attempt to counter the grievance of the learned Advocate for the prisoner, the learned Deputy. Legal Remembran--cer pointed out that the order did not indicate that there was any prayer for adjournment, and further that there was also no petition for adjournment on record. We are unable to attach much importance to the absence of a written petition for adjournment or any specific statement in the order refus--ing adjournment. It is manifest from the above order of the learned Additional Sessions Judge that trial commenced immediately upon appointment of the Advocate to defend the prisoner. It is but reasonable to think that the Advocate had prayed for an adjournment in such a situation. Be that as it may, a Division Bench of this Court (of which one of us was a member set aside a trial in almost similar circumstances in the case reported in Abdul Gani and another v. State (16 D L R 388). In that case the learned Advocate was allowed access to the' brief of the Sessions Court some three and half hours before the commencement of the trial, though he was appointed by the District Magistrate one month earlier. The trial was held to be bad in law since it could not have been possible for the Advocate within such a short period to fully acquaint himself with the facts of the case, far less to have private consultation with the prisoners he was called upon to defend; The above decision of this Court noticed the case of Khadem v. Crown (PLD 1954 Lah. 69) where in a similar situation Munir, C. J. And Kayani, J. (as he then was) had the occasion to observe as follows: - " When an accused is brought for trial, a Sessions Judge, who, finding that it is necessary to appoint counsel at Government expense for the prisoner nominates a counsel merely to stand and watch the trial without giving him an opportunity to study the necessary documents and think over tilt ruse, makes a farce of the rule which entitles a prisoner charged with a capital offence to free legal assistance". (The under linings are ours).
Relevant provisions concerning defence of pauper accused punishable with death appearing in the Legal Remembrancer's Manual, 1930, were also quoted in Abdul Gani's case. It was pointed out that the salutary provision contained in the 5th paragraph of the Chapter had been grossly violated by commencing the trial three and half hours after making the brief available to the Advocate appointed to defend the prisoners.
The Legal Remembrancer's Manual has since been revised. It has been published in one Volume in 1964 after Abdul Gani's case which was decided on August 2, 1963. The provi--sions relating to pauper defence now appear in Chapter XII of the Manual which is intended to be cited as of 1960.
Certain new paragraphs have been added in the Chapter. Paragraph 5 of the Old Chapter XI is now paragraph 6 of Chapter XII of the New Manual. For the sake of convenience the first seven paragraphs of this Chapter, which relate to pauper defence in the Sessions Court, are quoted below: -
1. Pauper accused punishable with capital sentence to be given legal assistance.-Every person charged with committing an offence punishable with death, shall have legal assis--tance at his trial and the Court should provide Advocate or pleader for the defence unless they certify that the accused can afford to do so.
Note.-Offences punishable with death are those under sections 121, 132, 194, 302, 303, 307 and 396 of the Pakistan Penal Code.
2. Committing Magistrate to report to District Magis--trate.-In committing murder cases to the Sessions Court, the Magistrate will report to the District Magistrate whether the accused was represented in the proceedings before him, and if not whether he can afford to engage an Advocate or pleader for his trial in the Sessions Court. If the Magistrate reports that the accused has not sufficient means, it will be incumbent on the District Magistrate to engage-an Advocate or pleader at Government expense.
3. Judge to take action when accused goes unrepresented.-- In any case, if the accused is unrepresented in the Sessions Court, and the Judge considers that he has insufficient means to obtain legal assistance, in spite of the committing Magistrate's report to the contrary, the Judge shall immediately inform the District Magistrate who must make the necessary arrangement for the defence of the accused.
4. No discretion of Court allowed.-It is no longer left to the discretion of the Courts to decide whether the nature of the case makes legal assistance essential. The sole criterion is whether the accused has sufficient means or not, and the Courts are bound to satisfy themselves on this point.
5. In each district the Magistrate may, after consulting the District Judge, form a panel of pleaders for the defence of pauper accused in murder cases subject to the approval of the Legal Remembrancer and the panel should consist of pleaders of sufficient standing and ability and should not be unreasonably large. The number of pleaders who will constitute the panel shall be fixed after approval by the Legal- Remembrancer and shall not be altered without his approval.
The District Magistrate may, however, appoint or remove any pleader after consulting the District Judge within the number approved by the Legal Remembrancer and after obtaining the Legal Remembrancer's previous sanction.
6. Engagement of pleaders to be made in time.-In all cases, the Advocate or pleader should be appointed in time to be able to study the case, and the person selected should be of sufficient standing and ability to render sub--stantial assistance. He should be given a brief similar to that prepared for Public Prosecutor, and it would be convenient if the two briefs were prepared together.
He should be supplied free of cost with copies of all papers of which an accused person is ordinarily allowed copies.
7. Employment of pleaders in mutually antagonistic defence: -- When two or more pauper accused of murder in the same trial put forward mutually antagonistic defence, arrangement should be made for separate representation of the accused by different pleaders or Advocates at the expense of Government."
Obviously, the above provisions were made in aid of section 340 of the Code of Criminal Procedure which confers right on every accused person brought before a criminal Court to be "defended" by a lawyer, which is not the same thing a being "represented" by a lawyer. That right evidently extend to access to the lawyer for private consultations and also affording the later an adequate opportunity of preparing the case for the defence. A last moment appointment of an Advocate for defending a prisoner accused of a capital offence not only results in a breach of the provision of the 6th paragraph of Chapter XII of the Legal Remembrancer's Manual, 1960 and frustrates the object behind the elaborate provisions of that Chapter, such an appointment results also in a denial to the prisoner- of the right conferred on him by section 340 of the Code.
In the instant case the learned Additional Sessions Judge, it appears, was faced with a difficult situation, since an adjournment would have led to hours without work. That situation however would not have arisen, had the learned Sessions Judge ascertained before transferring the case to the learned Additional Sessions Judge if engagement of an Advocate was within the economic reach of the prisoner, or even if the learned Additional Sessions Judge had done so at the time he fixed the date of the trial. There is also nothing on record to show that the committing Magistrate intimated the District Magistrate that the prisoner was not represented in the proceedings before him, although his order-sheet contains a remark that the prisoner was not represented in the said proceedings. It is regrettable that the provisions of the Chapter of the Legal Remembrancer's Manual relating to pauper defence were not complied with; in spite of clear directions given in Abdul Gani's case.
Whoever be at fault, the fact remains that the prisoner was denied the right contemplated in section 340 of the Cod of Criminal Procedure, namely, to be properly defended by a lawyer. The denial of this right must be held to have rendered the trial as one not according to law, necessitating a fresh trial.
The Reference is accordingly rejected. The appeal is also not allowed. The order of the learned Additional Sessions Judge convicting and sentencing the prisoner to death under section 302, P. P.
C. Is set aside, and he is directed to be tried afresh according to law.
In the event of the prisoner's inability to engage an Advocate of his own choice within a reasonable time, we hope an Advocate of sufficient standing and experience will be appointed in good time affording adequate facilities to the later for preparing for the defence. Pending the new trial, the prisoner will continue in jail custody.
AHSANUDDIN CHOUDHURY, J.-I agree.
Fresh trial ordered.