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Criminal Appeal No. 63 of 1971, decided on 28th July 1972.

‑‑ Vol. III, Chap. 24, r. 2, Part C read with Criminal Procedure Code (V of 1898), S. 340‑Defence counsel, appointment of‑Defence counsel appointed two days before commencement of trial on capital charge‑‑Held: Time allowed not in conformity with spirit of High Court instructions‑At least one week's time to be allowed in murder cases‑ Case remanded and retrial ordered‑Penal Code. (XLV of 1860), S. 302.

The statutory right of an accused, particularly in a charge entailing capital punishment, cannot be abridged by appointment of counsel a day or two before the trial. This rule is based on the principle that a person arraigned for trial for an offence entailing capital punishment should have the satisfaction that the counsel engaged on his behalf had enough time to prepare his case. Under section 340, Cr. P. C. an accused has a statutory right to be defended by a counsel. High Court Rules and Orders. Volume III, Chap. 24, Part C, rule 2 says that the counsel is to be appointed in time to enable him to study necessary documents. The time to be allowed in each case would vary but in a case entailing capital sentence at least a week's time has to be allowed to the counsel concerned.

Khadlm v. Crown P L D 1954 Lab. 69 and State v. Purna Chandra 22 D L R 289 rel.

Talib Hussain Rizvi for Appellant.

S. M. Masood far the A. G. for State.

Date of hearing: 28th July 1972.

The appellant in this case has been convicted under section 302 of the Pakistan Penal Code and sentenced to death for the murder of Mst. Khurshid Mai, by Mr. Akhtar Hassan, Sessions Judge.

Muzaffargarh, by order dated 7th of January 1972. The usual murder reference is also before us for, confirmation of the death sentence passed on the appellant.

2. A preliminary objection has been raised by Mr. Talib Haider Rizvi to the correctness and legality of the impugned judgment in this appeal. The appellant when examined by the committing Magistrate on 9th of April 1970, had said that he would engage his own counsel. The trial was fixed for 4th of January 1971. A notice was issued to him on 19th of December 1970, making a query whether or not he would be able to engage a counsel at his own expense. The notice was sent back to the learned Sessions Judge with the endorsement of the Superintendent, District Jail, Muzaffargarh, dated 30th of December 1970 along with the reply of the appellant that he was a poor man and that a counsel at State expense be appointed in this case. As would appear from the copy of the order dated 4th of January, 1971 printed at page 2 of the paper‑book, the fact that the appellant wanted a counsel to be engaged at the Government expense, came to the notice of the learned Sessions Judge on 2nd of January 1971 which happened to be a Saturday. The learned Sessions Judge on the same day pasted orders appointing Mr. Ziaur Rehman, Advocate to defend the appellant. It is further said in this order that the counsel accepted the brief without needing any adjournment.

3. The learned counsel relies on rule 2, Part .C of Chapter 24 of Volume 3 of the High Court Rules and Orders which deals with the appointment of counsel for indigent accused. This Rule may be quoted with advantage here:‑

If the accused is un-represented and cannot afford to engage counsel, the Sessions Judge shall make arrangements to employ counsel at Government expense, and he may also appoint counsel, if he thinks fit, even when 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 be supplied free of cost. These documents will ordinarily be copies‑

(1) the evidence recorded by the committing Magistrate, the charge and the order of commitment,

(2) the police record including not the zimnis, but such documents as the first information report, the inquest report and the plan of the spot."

Mr. Talib Haider Rizvi submits that there is no proof that the records mentioned in this Rule at items 1 and 2 were supplied to the counsel on 2nd of January 1971 or at the time of the trial. It is further submitted that the Rule specifically says that a counsel has to be appointed in time to enable him to study the necessary documents which have to be supplied to him free of costs. It is the contention of the learned counsel that one day's time for preparation of a murder case was not sufficient, especially, when it does not appear from the record at what point of time, if at all, the copies of the records mentioned in Rule 2 were supplied to the appellant. He in this connection refers to Khadim v. Crown (P L D 1957 Lah. 69) and State v. Purna Chandra (22 D L R 289).

4. The only point of distinction between the cases cited by the learned counsel and the case before us is that in the precedent cases the lawyers had been appointed on the day of the trial, but in the present case the counsel was appointed two days before the start of the trial. We do not know at what point of time the order of his appointment was passed on 2nd of January, 1971. However, there is no proof that he was supplied with full record on that day: There is no indication that the lawyer had any consultation with the accused and took instructions from him. Under section 340, Cr. P. C. an accused had a statutory right to be defended by a counsel. The rule of the High Court, quoted above, says that the counsel is to be appointed in time to enable him to study necessary documents. The time to be allowed in each case would vary but we feel that in a case entailing capital sentence at least a week's time has to be allowed to the counsel concerned. The statutory right of an accused, particularly in a charge entailing capital punishment, cannot be abridged by appointment of counsel a day or two before the trial. We, therefore, find that this trial was conducted against the spirit of the instructions contained in Rule 2 of the High Court Rules and Orders, referred to above, This Rule is based on the principle that a person arraigned for trial for an offence entailing capital punishment should have the satisfaction that the counsel engaged on his behalf had enough time to prepare his case This is one of the fundamental principles of the administration of criminal just which we feel has not been kept in view in this case.

We, therefore, set aside the order of the learned Additional Sessions Judge convicting and sentencing the appellant, and order his retrial. He shall be treated as undertrial prisoner.

5. Since this is an old case, the learned Sessions Judge shall give it precedence and fix an early date. The appeal and the Murder Reference are decided accordingly.

Case remanded.

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