P L D 1954 Lahore 69 (PLP)

Counsel who accepts a dock‑brief and for fee paid by the State undertakes to defend a prisoner without trying to know anything about the case offends against the traditions of his profession, If he is not ready for the defence it is his duty to ask for time and, if necessary, for adjournment. A. A. Lodhi, (at Government expense) for Appellant. Ch. Muhammad Sharif, Assistant Advocate‑General for Respondent. MUHAMMAD MUNIR, C. J.‑This is an appeal from a sentence of death, the appellant being Khadim, who has been convicted by the learned Additional Sessions Judge, Jhang, for the murder of Muhammad. The appellant was committed to the Court of Session at Lyallpur by a Magistrate on 10th December 1952. The trial was held before Mr. Fazal‑i‑Ilahi. Additional Sessions Judge, Jhang, on 9th April and 25th April 1953. The appellant stated before the committing Magistrate on 10th December 1952 that he would himself engage counsel for his defence at the trial, but there is nothing on the record to show that this fact was formally communicated to the Sessions Judge. Intimation of the date of the trial was ordered to issue from the office of the Addi tional Sessions judge on 28th March 1953, but here again the file does not disclose the date on which this notice was served on the appellant who was in jail. When the appellant was brought for trial before Additional Sessions judge on 9th April it was found that he had not engaged any counsel to defend him. The learned judge, therefore, appointed Sayyed Kazim Hussain, an Advocate, to defend him at Government expense. The trial began the same day and the entire evidence for the prosecution and the statement of the accused were recorded on that day. In his statement, the appellant said that he would produce defence and named Sultan Lambardar, Ahmad, Lai Khan. Mian Ismail, Fateh Khan, Nazra and Haq Nawaz as his witnesses. The trial was, therefore, adjourned to 25th April on which date Munshi Imam Bakhsh, who had already given evidence as a prosecution witness, was re‑called as a defence witness and two more witnesses, namely, Watti and Fateh Khan, were examined and the other witnesses named by the appellant were given up. The judgment was announced the same day. The point taken by learned counsel before us is that con viction must be set aside and a retrial ordered on the short ground that the provisions of rule 2, Part C, Chapter 24, Volume III of Rules and Orders of the High Court have not been complied with and it cannot be said that counsel, who was appointed to defend the appellant, was given the requisite time and facilities to prepare the case. The record shows that important witnesses in the case were put only a few unimport ant questions in cross‑examination which had little bearing on the case. Section 340 of the Code of Criminal Procedure gives to an accused person the right to a reasonable opportunity to defend himself by counsel. Rule I, Chapter 24, Part C, High Court Rules and Orders, Volume III, provides that every person charged with committing an offence punishable with death should have legal assistance at his trial and requires the committing Magistrate to report whether the accused was represented by counsel in the proceedings before him, and, it not, whether he can afford to engage one for his trial in the Court of Session. The intention underlying this rule is that the Sessions judge should know in advance whether the accused is or is not in a position to engage counsel, so that, if the accused does not have the means to arrange legal aid for his defence, the Sessions judge may make arrangements for a dock‑brief. The learned committing Magistrate did not comply with this rule. Rule 2 of the same Chapter provides that, if the accused is unrepresented and cannot afford to engage counsel, the Sessions Judge shall make arrangements to employ counsel at Government expense. Such counsel has to be g appointed in time to enable him to study the necessary docu ments which should be supplied free of costs. Ordinarily, these documents are: (1) the evidence recorded by the committing Magistrate, the charge and the order of commitment ; and (2) the public record, including, not the Zimnis, but such documents as the first information report, the inquest report and the plan of the spot. The provisions of this rule also were not complied with. It is quite clear from the fact that the trial was practically con cluded on the day it began that copies of the aforesaid docu ments could not have been prepared and supplied to the counsel who was appointed to defend the appellant. It is, thus, obvious that the trial was held in contravention of this rule and the appellant did not in fact, have the kind of legal assist ance that is contemplated by the rule. The trial is, therefore, bad and the consequent conviction and sentence are unsustain able. We, therefore, accept the appeal, set aside the conviction and sentence and order the appellant to be retried according to law. We might observe that this is not the first case that has come to our notice where proper attention has not been paid to the provisions of Part C of Chapter 24 of Volume III of Rules and Orders. These rules are binding on subordinate Courts and must be complied with both by the committing Magistrates and the Sessions Judges. A committing Magistrate who does not formally communicate that the accused was note represented by counsel before him and is not in a position to engage his own counsel for defence at the trial, neglects to, perform an important part of his duty and, when the accused is brought for trial, 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 the case, makes a farce of the rule which entitles a prisoner charged with a capital offence to free legal assistance. It is true that, where it is discovered on the date fixed for the trial that the accused is without counsel, postponement of the trial becomes necessary, causing delay and expense. But the rule is intended to be observed and, if such adjournment becomes necessary, it must be granted irrespective of all considerations of expense and delay, unless the case is perfectly simple and the judge is conscientiously of the view that a few hours' time would be sufficient to enable counsel to take instructions from the prisoner and study the necessary documents in order satisfactorily to prepare himself for the defence of the prisoner. Of course, counsel who accept a dock‑brief and for fee paid by the State undertakes to defend a prisoner without trying to know anything about the case offends against the traditions of his profession. If he is not ready for the defence it is his duty to ask for time and, if necessary, for adjournment. We do not know when the learned Additional Sessions Judge fixed the dates of trial in the present case. The case had been committed in December 1952 and, if he first thought of fixing a date in the case only near the end of March and gave only eleven days for service of the notice of date on the prisoner, for the prisoner to communicate with his relatives, for the relatives to engage counsel and for counsel to inspect the record and prepare the case, it discloses a sad state of affairs. It would show that for over three months the learned judge did not at all think of this case and when he thought of it he was in such a hurry that he could not give more than eleven days for all necessary steps to be taken for the proper representation of the prisoner. Such unseemly hurry makes defence in important cases of crime impossible and is likely to affect the result of the trial. It also detracts from the public confidence in the administration of justice. It is the duty of the Sessions Judges to study all cases which have been com mitted to them and within a few days of the receipt of the record to fix the date of trial. This will not only result in expeditious disposal but will also enable the parties to know well in advance the date of trial and make necessary arrange ments for defence. Where a Sessions judge has the assistance of an Additional, he should, when the records are received, decide whether he would try the case himself or send' it for trial to the Additional. It is highly improper for a Sessions judge to keep a case with himself for months and then, finding that he cannot fix it before himself, entrust it to another judge, leaving to him to fix a date according to his own convenience and take such hurried steps as have been taken in this case. A.H. Retrial ordered.