P L D 1954 Lahore 547 (PLP)

ORTCHESON, J.‑‑Iftikhar‑ud‑Din, aged 29 years son of Ahmad Din, has been convicted under sections 302, 201 and 397 P. P. C. by tile learned Additional Sessions Judge, Gujranwala, for offences arising out of the murder and robbery of one Haji Nizam Din. Under section 302 P, P C. he has been sentenced to death, while for each of the other two offences he has been awarded seven nears' rigorous imprisonment. He has appealed and the case is also before us for confirmation of the death sentence under sect 14 in 374 Cr. P. C. The facts briefly are that the appellant and one Sadiq are alleged to have murdered Haji Nizam Din in the month of December h951, to have robbed the victim of approxi mately Rs. 8,000 which he was carrying with him, and to have buried the body in the appellant's house. The appellant was granted a pardon on the usual terms, and appeared as approver at the trial of Sadiq. His testimony was not in accordance with his earlier statement and instead of supporting the story that he and Sadiq jointly murdered Haji Nizam Din, the appellant put forward the version that the deceased received his injuries as a result of being hit on the head and knocked down by a tonga. In spite of the appellant's having turned against the prosecution, Sadiq vas convicted and sentenced to death. His appeal was dismissed and the sentence confirmed by a Division Bench of this Court on 26th March 1953 (Criminal Appeal No. 862 of 1952 and Murder Reference No. 6 of 1953). A further appeal was also lodged in the Federal Court. As, in the opinion of the Crown, the appellant had, by giving false evidence in the Sessions Court at the trial of Sadiq, forfeited his pardon, he was himself sent up for trial on charges under sections 302, 201 and 394/397 P. P. C. found guilty on all charges except that under section, 394 P. P. C. and sentenced as set out above. The first ground put forward in this appeal is that as the appellant was not afforded a reasonable opportunity to have a counsel of his own choice, the entire trial stands vitiated. This contention is based on the following facts: After the Public Prosecutor had propounded his case in the Sessions Court, the appellant stated that tic did not wish to be further defended by the two counsel appearing for him, Sh. Matiullah and Khan Abdullah Khan Advocates, and that he wished to engage a counsel from Lahore. The two gentlemen referred to very properly asked for permission to retire from the case which was granted on 9th November 1953. The Learned Additional Sessions Judge adjourned the proceedings till the following day and sent in turn for Mr. Muhammad Shafi Advocate and Mr. Ikram Ullah. The former expressed his inability to conduct the case on the ground that his relations with the appellant's father were strained, but Mr, Ikram Ullah undertook the defence of the case at Government expense. He was accordingly appointed by the Court, the appellant being at the same time informed that if he so desired he was at liberty to bring a counsel from Lahore or anywhere else". The papers were however, landed over to Mr. Ikram Ullah On 10th November the case again came up for hear ing and the appellant submitted an application to the effect that; he had no confidence in the counsel engaged by the Court and prayed for as indefinite adjournment to enable him to engage a counsel from Lahore. Being of the opinion that the appellant was deliberately delaying the proceeding till the decision of Sadiq's appeal to the Federal Court, the learned Additional Sessions Judge rejected the application and the trial proceeded. The prosecution wit nesses were cross‑examined by Mr. Ikram Ullah and the appellant was given an opportunity of putting questions to them himself but refused to avail himself of it. There is no doubt that the procedure adopted by the, learned Additional Session Judge in forcing a counsel on the accused against the latter's wishes was illegal. The matter has already been considered and decided by this Court in two separate cases, reported as A I R 1929 Lah. 705 and 39 P L R 311 respectively. In the first of these then were 16 accused, of whom one, Bhatkeshwar Dutt by name was unable to attend Court at one hearing owing to illness. The pleader who had‑represented him at the previous hearing had an interview with him and informed the Court that Bhatkeshwar Dutt no longer wished counsel to represent him. The case was adjourned and as the accused was again finable to attend the Court, the Magis trate appointed a pleader to represent him against the wishes of the accused. The legality of the procedure was challenged and in this Court learned counsel relied on section 5‑10A, Criminal Procedure Code. It was held to be manifest that the pleader contemplated by the above section must be one who represents the accused and not a person, appointed without the accused's consent. It was further laid down that' the inherent powers conferred on this Court by section 561‑A, Criminal Procedure Code, cannot be invoked to extend the scope of a specific power conferred upon the Court by a statute. The judgment, delivered by Shadi Lal C. J., contains the following pertinent observations :‑ "There is nothing in the English practice or the directions issued by this Court which can be invoked to support the argument that the Court has the power to engage counsel for an accused person against his wishes. It must be remembered that a pleader is the representative of the persons for whom he appears, consequently the acts done by the former are, subject to certain recog nized principles, binding upon the latter. The employment of counsel places him in a confidential position, but no such relation can be established between a client and a counsel who is neither chosen by him nor given to him with his express or implied consent, but assigned, with‑ out his sanction, by the Court at the instance of the prosecution." In the case reported as 39 P L R 311, the appellant, who had been represented in the Court of the committing Magistrate by no less than seven counsel, informed the jail authorities before his trial that he intended to engage counsel at his own expense. When he appeared before the Sessions judge none of the said counsel was prepared to conduct his defence whereupon the Sessions judge appointed a counsel at the expense of the Crown. The appellant informed the judge that he did not wish his case to .be conducted by the counsel in question but the Judge ordered the trial to proceed, the appellant disso ciating himself from the proceedings: At the hearing of the case in this Court, the proposition that a judge has no power to appoint a counsel to conduct the appellant's case against his wishes was not disputed by the Crown, but the contention was advanced that although the pro cedure adopted by the Sessions judge was erroneous and irregular, the irregularity did not vitiate the trial, no failure of justice being apparent. The contention was overruled and it was held that the irregularity had resulted in a wholly irregular trial and therefore in a failure of justice. Section 340 (1) of the Code of Criminal Procedure no doubt lays down that any person accused of an offence before a criminal Court may of right be defended by a pleader, but this provision if law cannot be interpreted as meaning that an accused can indefinitely delay the proceed ings by refusing without reasonable cause to accept the services of the counsel appointed on his behalf by the Court. The only effect of section 340 (1) is that once counsel has been engaged, either by the accused himself or on his behalf, no Court can deny such counsel the right of appearing. Rule 2 of Chapter 24 (c) of the Rules and‑Orders of this Court, Volume III, provides that if, in cases to which the chapter applies, the accused is un-represented and cannot afford to engage counsel the Session's judge shall make arrangements to employ a counsel at Government expense, and 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. This rule also, however, cannot be interpreted as entitling the Court to force a counsel upon an unwilling accused. The power conferred on the Court of engaging counsel even when the committing, Magistrate has not considered it necessary is intended to be exercised so as to ensure adequate re presentation for an accused who might otherwise be deprived of such a privilege. If on the other hand the accused contumaciously refuses to accept the offer of legal advice made to him, the proper procedure is to inform him that if the representation arranged by the Court is not acceptable to him, he must conduct his case himself. I am constrained to add that there is considerable substance in the assertion of learned counsel for the defence that the time allowed to the appellant by the Court for engaging counsel ,from Lahore or elsewhere, namely, one day, was inadequate. The trial was held at Gujranwala, nearly 50 miles from Lahore, and even if a counsel had been engaged immediately and without previous negotiations, it would have been a Herculean task for him to master the brief in time for a hearing of the case at Gujranwala the following morning, particularly as the proceedings arising out of the previous trial of Sadiq were also to be studied. It is difficult to imagine that any conscientious lawyer would undertake to prepare his case fully in so short a time. It may be added that the time allowed to Mr. Ikram Ullah for preparation was also too short. For the above reasons I have no option but to hold that the procedure adopted by the learned Additional Sessions Judge has vitiated the proceedings. The proceedings must accordingly be quashed and a fresh trial held according to law. As Mr. M. A. Rahman, who presided at the trial, has now been transferred, there is no bar, to the case being sent back to Gujranwala. SHABIR AHMAD, J.‑I agree. A. H. Proceedings quashed.