PLD 2007 Karachi 544 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The convict Faisal has filed application under section 561-A, Code of Criminal Procedure read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to review the judgment dated 15-3-2007, by which the Court had dismissed his jail appeal. The prayer for reviewing the judgment has been sought on the ground that he was not heard properly as he was not represented by a counsel.

2. Brief facts giving rise to the present application are that the convict along with Muhammad Zahid (another convict) and Mst. Urooj were tried by Anti-Terrorism Court No.II, Karachi Division. At the trial the convict Faisal was unable to engage an Advocate, therefore, the trial Court provided him an Advocate for conducting his trial on State expense. After the trial Faisal and Muhammad Zahid were convicted for offences punishable under section 365-A, P.P.C. and section 7 of Anti-Terrorism Act, 1997, whereas co-accused Mst. Urooj was acquitted. The convict Faisal filed jail appeal, whereas the convict Muhammad Zahid did not prefer any appeal. The State filed acquittal appeal against Mst. Urooj. The appeal of Mst. Urooj and the convict were heard together. The convict did not engage any Advocate, therefore, he was called in person. After hearing him, A.A.-G. for the State the appeal was disposed of as mentioned above. In these circumstances, the appellant has filed the application for reviewing the judgment.

3. At the outset it is pointed out that there is no provision in the Code of Criminal Procedure for reviewing the judgment. Once it is A signed and announced it cannot be reviewed. The Hon'ble Supreme Court of Pakistan took the similar view in the cases of Rehmat Ali v. State 1971 SCMR 513, Muhammad Khan v. Muhammad Aslam 1971 SCMR 789, Gulzar Hassan Shah v. Ghulam Murtaza PLD 1970 SC 335, Juan Sullivan v. State 1971 SCMR 618 and Muhammad Ismail v. Hidayatullah 1981 SCMR 35.

4. The learned Advocate for the appellant has relied upon a decision of Division Bench of this Court in the case of Mst. Mumtaz Begum v. Shakil Hyder 1997. PCr.LJ Kar.

776. The facts of the said case are distinguishable from the facts of present case as in the reported case the appeal was heard in the absence of accused. Whereas in the present case, the appellant was heard in person as such the above authority is not applicable to the facts and circumstances of the present case.

5. However, two important following questions were raised by the learned Advocate for the appellant and framed by the Court for decision, which are as under: (1) Whether the Court is required to provide an Advocate to an accused person who is unable to engage an Advocate in a case of offence involving imprisonment? (2) By not providing an Advocate on State's expense to such accused, provisions of Article 9 of the Constitution are violated?

6. In order to decide the said questions which involve interpretation of Constitution, notice was issued to D.A.-G. and Advocate-General. In pursuance of the said notice. Mr. Mahmood Alam Rizvi, Standing Counsel. Mr. Ghulam Sarwar, Addl., A.-G. and Mr. Habib Ahmed, Assistant Advocate General had appeared. Mr. A.Q. Halepota was present in the Court and had agreed to assist the Court on the above points as Amicus Curiae.

7. On the above two questions, we have heard them and Mr. Abdul Razzak, Advocate for the convict/applicant.

8. From the arguments and case-law cited at the bar it is to be seen whether an accused person involved in an offence carrying imprisonment of any description is entitled to be represented by an Advocate and whether such right of the accused is his fundamental right as enshrined in Article 9 of the Constitution.

9. Article 9 stipulates that no person shall be .deprived of life and liberty save in accordance with law. Article 4 deals with the right of individuals to be dealt with in accordance with law. The said Article stipulates; "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan".

10. For interpreting the Articles of Constitution the Hon'ble Supreme Court of Pakistan gave guidelines. Some of the cases are as under.

11. In the case of Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 it has been observed, that while interpreting fundamental rights, the approach of the Court should be dynamic progressive and liberal keeping in view the ideas of the people, socio-economic and politico culture values which in Pakistan are enshrined in the Objective Resolution :so as to extend benefit of the same to the maximum possible. It has further been observed that the Constitution is to be interpreted in a liberal and beneficial manner which may engulf and incorporate the spirit behind the Constitution and also .the fundamental rights guaranteed by the Constitution. In the case of Arshad Mahmood v. Government of Punjab PLD 2005 SC 193 it is held that the Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, amity among the citizens, therefore, while interpreting its different Articles particularly relating to the fundamental rights of the citizens, approach of the Courts should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. In the case of Mushtaq Ahmed Mohal v. Hon'ble Lahore High Court 1997 SCMR 1043 it has been observed that an Article relating to fundamental rights has to be construed liberally so that its benefit/protective umbrella may be extended rather than to restrict it.

12. Keeping in view the above principle of interpretation of Articles of the Constitution relating to fundamental rights we have examined the Article 9 and found that the Constitution gives guarantee to the citizens that their life and liberty would not be deprived except in accordance with law. Right of access to justice also comes within such guarantee which means that the accused should have a fair trial. Thus a fair trial is a fundamental right of an accused person. The Hon'ble Supreme Court of Pakistan in the case of Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 has observed that the right of `access to justice to all' is a well-recognized and invariable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of `due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. The term `due process of law" is summarized as follows:-- (1) He shall have due notice of proceedings which affects his rights; (2) He shall be given reasonable opportunity to defend; (3) The Tribunal or Court before .which his rights are to be adjudicated shall be so constituted as to give reasonable assurance of its honesty and impartiality; and (4) It shall be a Court of competent jurisdiction.

13. In the case of Government of Balochistan v. Azizullah PLD 1993 SC 341 it is also held that: "The right of access to justice includes the right to be treated according to law, the right to haven fair and proper trial ."

14. From the above decisions it is clear that an accused involved in criminal case has a fundamental right to have a fair trial. Now, the question arises as to whether fair trial means with or without a counsel to such accused person irrespective of his financial position. It has been observed that accused persons who have some means they always engage Advocates to represent their cases. The problem arises to accused persons who are poor, pauper and cannot engage a counsel to represent them in a Court of law in criminal proceedings and cases initiated against them. The question was examined by United States' court in a case of Gideon v. Wainwright (1963) 372 US

335. It was observed as under:-- "Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person held into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crimes, Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged 'with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal Courts are necessities not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has face his accusers without an lawyer to assist him. "

15. In another case of Jon Richard Argersinger v. Raymond Hamlin (1972) 407 US 25 while dealing with the philosophy of free legal services Douglas J. observed as under:-- "The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the sciences of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence how much more true is it of the ignorant and illiterate or those of feeble intellect. "

16. Superior Courts of our neighbouring country India examined Article 21 of their Constitution which stipulates that: "no person shall be deprived of his life and liberty except in accordance with the procedure established by law". The said Article is corresponding to Article 9 of our Constitution. The Indian Supreme Court in the case of Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369 examined the cases of under trial prisoners who were charged .with offences which were bailable and were in jail because no application for bail was moved on their behalf or being too poor and unable to engage Advocate and furnish bail, at page 1373 it has been observed as under:-- "

6. Then there are several under-trial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor they are unable to furnish bail. It is not uncommon to find that under-trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf. Sometimes the Magistrates also refuse to release the under-trial g prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reasons of their poverty the under-trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of released .from pretrial .detention. This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programme, but so far, these cries do not seem to have revoked any response. We do not think it is possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nationwide legal service programme to provide free legal services to them. It is now well-settled, as a result of the decision of this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248; (AIR 1978 SC 597) that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some `semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be reasonable, fair and just. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and .who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as "reasonable, fair and just". It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the Court's process that he should have legal services available to him. This Court pointed out in M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544: AIR 1978 SC 1548): "Judicial Justice, with procedural intricacies. Legal submissions and critical examination of evidence, lean, upon professional expertise;-and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Angle-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer--power for steering the wheels of equal justice under the law''. Free legal services to the poor and the needy is an essential element of any "reasonable fair and just" procedure. It is not necessary to quote authoritative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied `reasonable, fair and just' procedure."

17. It has further been observed at page 1374 as under:-- "The right to free legal services is, therefore, clearly an essential ingredient of "reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Article

21. This is a constitutional right of .every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required provided of course the accused person does not object to the provision of such lawyer. We would, therefore, direct that on the next remand dates, when the under-trail prisoners, charged with bailable offences, are. produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such under-trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated 12th February, 1978. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from L today."

18. It is not out of place to mention here that so many laws .have been enacted on similar subject and large number of amendments have been made in the existing laws, as such, statutes and other laws are numerous and complexity in which they are involved, representation by a counsel and assistance by a person learned in law is a sine qua non for enjoying protection of Articles 4 and 9 of the Constitution. As such now it has become essential that a fair trial cannot be visualized without an accused being represented by a counsel of his choice or by a counsel on State expense. Yet in another case of Suk Das v. Union of Territory of Aruxadal Paradesh AIR 1986 SC 991, at page 993 after considering other judgments on the same subject observed as under:-- "It may, therefore; now be taken as a settled law that free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. "

19. The assistance of free legal advice. has become-more essential and prominent for the reasons that it is commonly known that about more than 70% of our population is residing in rural areas and illiterate. Even more than the above percentage of population is unaware of their legal rights which are conferred upon 'them by law and Constitution. It is not out of place to mention that even literate people do not know their legal rights and entitlements under tyre law. It is the' absence of legal awareness that is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer most in the country, therefore, they cannot become self-reliant and cannot even help themselves. Thus, the law ceases to be their protector. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor. We appreciate the role of print and specially electronic media in highlighting the issue but still more is required.

20. Thus, a trial and proceedings without a counsel cannot be called a fair trial and proceedings hence the same would be violative of Article 9 of the Constitution.

21. Under the Constitution it is the duty of -the State to protect, respect, safeguard, ensure and facilitate the exercise of fundamental rights, therefore, the. State is duty-bound to provide assistance to accused persons who are poor and indigent, therefore, 'it is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, liberty except in accordance with the procedure established by law while the citizen is in .its custody whether he be a suspect, under trial or convict. Further, his liberty is in the very nature of things seems circumscribed by the very fact of his confinement and, therefore, his interest in the limited liberty left to him is rather precious. Hence the duty of care on, the part of State is strict and admits of no exceptions on any ground as the accused person is accountable and the State is responsible if the person in the custody of police is deprived of his life except according to the procedure established by law.

22. From the above it is manifest that the accused from the very stage of his arrest till final disposal of the case is required to be defended or represented by a legal expert viz. Advocate if he is poor, indigent or pauper and the State is responsible to provide such assistance to him on State expense.

23. We are aware of the fact that presently no scheme to deal with the above problem is under consideration with the Government or any adequate arrangements .are available to cater the requirements of such poor accused persons. We hope and expect that Government would give very serious consideration to prepare and implement on urgent basis a scheme in respect of providing free legal assistance to poor, indigent or incommunicado accused persons. Till such scheme, is prepared and implemented initially we direct the Provincial Government of Sindh to see and examine the feasibility of appointing an Advocate in each Court at Taluka level and few Advocates at District headquarters to represent the accused persons who are unable to secure legal service on account of reason such as poverty, indigence or incommunicado situation or otherwise disabled from securing legal assistance where the ends of justice call for such service. Till such time, such Advocates are appointed of scheme of free legal aid is formulated or such arrangements are made the Presiding .Officers of the trial Courts and the Magistrates are directed to immediately appoint an Advocate to represent such accused person on State expense from amongst Advocates practising within their jurisdiction or in consultation with the District or Taluka Bar Associations. Such assistance be provided to the accused from the state of remand till final disposal of the cases. The State is required to pay to arranged counsel such sum as the court may equitably fix because the State has prosecuted the prisoner and set in motion the process which deprived him of his liberty. The above beneficial prescriptions operate by force of Article 9 of the Constitution from the lowest to the highest Court where deprivation of life and personal liberty is in substantial peril.

24. Before parting with the matter we may state that the above order) has no retrospective effect, it shall not affect cases past and closed or invalidate the judgments, orders or sentences passed or the proceedings which may have become final. The order has a retrospective effect. The pending trials and proceedings may continue subject to the above. The Hon'ble Supreme Court of Pakistan in the case of Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 took a similar view in respect of past and closed trials and convictions and further ordered that the pending trial would continue subject to the said judgment.

25. In the present case as the appellant was already heard and judgment has become final, therefore, it cannot be reopened. The application is disposed of in the above terms. M.B.A./F-12/K Order accordingly.