AKHTAR ZAMAN MALGHANI, J.--Judgment dated 6-10-2000, passed by learned Special Judge, under Control of Narcotic Substances Act, 1997 has been assailed through instant appeal whereby the appellant was found guilty under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced to life imprisonment and fine of Rs,2,00,000; in default to further suffer S.I. For a period of two years.
2. Briefly stated, facts of the case are that on 25-7-2000, in consequence of a secret information the Anti-Narcotics Force raided the house of the appellant situated at Girdi Jungle and arrested the appellant from there after exchange of firing. On search of the house, besides arms and ammunition five plastic bags containing 45 Kilograms opium were recovered which was taken into possession and a case vide F.I.R. No,16 of 2000 was accordingly registered in Narcotics Task Force Station, Dalbandin on the report of Capt. Asghar Mehmood, Assistant Director, ANF, Dalbandin. The investigation of the case was entrusted to Tanveer-ul-Hanif, S.H.O. Who recorded the statements of the prosecution witnesses and sent the .Samples of recovered Narcotics for chemical analysis to the Chemical Expert. After receipt of report Exh.P/2-D which is positive, he submitted challan before the learned Special Judge under Control of Narcotic Substances Act, 1997/Sessions Judge, Nushki, who after observing legal formalities read over the charge to the appellant to which he pleaded not guilty. Thereafter, prosecution produced three witnesses namely P.W.1 Muhammad Dawood, A.S.-I., P.W.2 Tanveer-ul-Hanif, S.H.O. And P.W.3 Capt. Asghar Mehmood. After close of prosecution side appellant was examined under section 342, Cr.P.C. With regard to the incriminating pieces of evidence appeared against him in prosecution case and he denied all the allegations and claimed innocence. However, he neither opted to record his statement on oath nor produced any witness in his defence.
3. The learned Special Judge under Control of Narcotic Substances Act, 1997/Sessions Judge Nushki found the appellant guilty and sentenced him as mentioned above. The appellant has filed present Appeal No,129 of 2002 before this Court through Jail Authorities. At the time of admission of the appeal, Syed Ayaz Zahoor, Advocate volunteered to appear on behalf of the appellant.
4. We have heard the arguments of the learned counsel for the parties and also perused the record, as well as impugned judgment. It is contended by the learned counsel for the appellant that the offence with which the appellant was charged is punishable with death, as such; it was incumbent upon the learned trial Court to have employed a counsel on Government expenses to defend the appellant as provided under the High Court Rules and Orders. According to the learned counsel the conviction and sentence awarded to the appellant is liable to be set aside on this sole ground due to violation of the mandatory provision of the law, because the appellant was unrepresented before the trial Court and the witnesses were cross-examined by the appellant himself which has caused great prejudice to him.
5. On the other hand, learned Special Public Prosecutor Mr. H. Shakeel Ahmed, Advocate defended the impugned judgment and stated that the appellant had not asked for employing a counsel on Government expenses and he had himself cross-examined the witnesses, therefore, no prejudice has been caused to the appellant and on this sole ground the judgment passed by a Court of competent jurisdiction cannot be set aside.
6. It may be noticed that High Court Rules and Orders provides that when a person is charged with an offence' punishable with death and is unrepresented and cannot afford to engage counsel, then the Sessions Court (for that matter Special Court in the present case) should provide a counsel on State expenses. For convenience paras. 1 and 2 of Chapter 24, Part C of High Court Rules and Orders, Volume III are reproduced as under:-
1. Committing Magistrate to report whether accused can afford to engage counsel.--It is considered that every person charged with committing an offence punishable with death should have legal assistance at his trial either in a Court of Session or in the High Court. With this object the Magistrate committing any person for trial to a Court of Session or to the High Court shall report whether the accused was represented by counsel in the proceedings before him, and, if not, whether the accused can afford to engage one for his trial in the Court of Session or the High Court.
2. Counsel for accused to be provided by 'Sessions Judge.--If the accused is unrepresented and cannot afford to engage counsel, the Sessions Judge shall make arrangements to employ counsel at Government expenses, and he may also appoint counsel, if he thinks fit, even the Committing Magistrate has considered that the accused has means enough to engage counsel himself.
Counsel in such cases should be appointed in time to enable him to study necessary documents which should b supplied free of cost.--- The perusal of above mentioned para. Clearly casts a duty on the trial Court in the cases punishable With death, where the accused is unrepresented, to first ascertain whether the accused has means to engage a counsel or not. If it comes to the conclusion that the accused cannot afford to engage a counsel on his own, then the trial Court should make arrangement to employ counsel on Government expenses. While making this inquiry the trial Court can put certain questions to the accused in order to ascertain his financial position and means of income etc. It can also enquire from the Investigation Agency as to whether at the time of arrest accused was found in possession of some money, if so, that money was enough for engaging a counsel. Of course, if the trial Court comes to the conclusion that the accused has enough means to engage a private counsel and is deliberately avoiding to do so, either for the purpose of delaying the proceedings or for any other reasons, then the trial Court is not bound to make arrangement for employing a counsel on Government expenses. All this exercise should be in black and white and apparent from record, so that Appellate Court can form its own opinion, in case an objection to this effect is taken at appellate stage. It is pertinent to mention here that prior to amendment in the Criminal Procedure Code, such enquiry was to be made by the Magistrate in committal proceedings in light of para. 1 of Part C but after deletion of provisions relating to committal proceedings it is now the duty of trial Court to do the needful.
7. Section 340, Cr.P.C. Provides that any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code (Cr.P.C.) in any such Court, may of right be defended by a pleader. In our view this provision must undoubtedly be construed liberally in favour of accused and must be read alongwith the above mentioned rule provided by High Court Rules and Orders enjoining that where in capital cases the accused has no means to defend himself, a counsel should be provided to defend him.
8. We have considered the facts of the present case in the light of the above laid down principle. It appears from the order sheets of the case that on 1-9-2000 the appellant was directed by the trial Court to make arrangements of counsel for himself. On the adjourned date i,e, 5-9-2000 the appellant requested for time in order to engage a counsel which was allowed and the case was adjourned to 11-9-2000. It may be noted that while adjourning the case at the request of the appellant, the trial Court was conscious of the fact that the offence with which the appellant is charged entails punishment of death and a note to this effect was also mentioned in the order sheets. However, on the said date no proceeding could be drawn and the case was adjourned to 14-9-2000 at the request of Special Public Prosecutor. The perusal of order sheet of the date to which the case was adjourned shows that evidence of two prosecution witnesses were recorded and cross-examined by the appellant himself as he was not represented by any counsel.
9. Above narrated facts clearly show that the learned trial Court has neither tried to ascertain as to whether the appellant had enough means to engage a counsel by himself nor he was; offered the services of a counsel on Government expenses, which in our considered view was mandatory in the light of section 340, Cr.P.C. Read with High Court Rules and Orders reproduced above. The appellant was awarded imprisonment for life on the basis of evidence recorded in absence of a counsel to which the appellant was entitled under the law as such; the same is not sustainable due to violation of above mentioned provisions. We, therefore, allow this appeal and set aside the impugned judgment dated 6-10-2000 and remand the case to the trial Court with direction to ascertain as to whether the appellant can afford to engage a counsel, if not, a counsel be employed on Government expenses, who be given opportunity to cross-examine the prosecution witnesses after re-calling them. After cross-examination the appellant be re-examined under section 342. Cr.P.C. And if he wants to lead defence and examined himself on oath, opportunity be given to him, then the case be decided afresh. It is needless to observe that; if the appellant engages a counsel of his own choice. He should also be given opportunity of cross-examination as mentioned above.