1984 P Cr (PLP)

SAJJAD ALI SHAH, J.-Both the appeals, one filed by Appellant Abdul Aziz and the other from Jail by appellant Mst. Khurshid and reference, for confirmation of death sentence arise from impugned judgment-dated 24th January, 1982 of learned Sessions Judge, Sanghar, whereby both appellants have been condemned to death and directed to pay Rs. 5,000 each as compensation to the heirs of the deceased, in the result of convic tion for offence under section 302/34, P. P. C. Shortly stated the prosecution case is the appellant Abdul Aziz way Hari of deceased Murad Ali and was living in his house in Kote Hakim Mubarak A14 Deb Tando Adam. Appellant Mst. Khurshid is wife of deceased and developed criminal intimacy with appellant Abdul Aziz. For reasons stated in F. I. R. deceased wanted to shift to another place, which was opposed by both the appellants. On 6th October, 1980 at about 2/3 a.m. both the appellants inflicted hatchet blows on Murad Ali in his house, while he was asleep on the cot and then removed his dead body on the cot, threw it outside the house and brought back the cot. Incident was seen by Mst. Nasreen daughter of deceased and appellant Mst. Khurshid but she was threatened to keep her mouth shut. Both appellants then awakened other inmates of the house and informed them that some unknown person had killed the deceased. Complainant Muhammad Ilyas, nephew of deceased, on being so informed lodged F. I. R. at Police Station Tando Adam but expressed suspicion on both appellants in it. During the investigation both the appellants were arrested and their blood-stained clothes and hatchets were seized. Appellant Abdul Aziz first went to P. W. Allahyar and made extra judicial 'confession and he produced him before police. Subsequently appellant Abdul Aziz also made judicial confession, which was duly re corded by the Magistrate. After completion of investigation challan was presented in the Court. We do not propose to go into details or discuss the merits of the case for the simple reason that it has been jointly pointed out by all else three learned counsel appearing before us in these appeals that very serious prejudice has been caused to appellant Mst. Khurshid in the conduct of trial, which necessitates remand of the case to the trial Court for de novo proceedings. What has happened is this that after the challan was presented in the trial Court both appellants expressed their inability to engage their own Advocates, hence the learned trial judge appointed Hafiz Abdul Razzak as Advocate for defence on State expenses for both the appellants as it reflected in case diary of 18th May, 1981 in the record of the trial Court. State was represented by A. P. P. Mr. Faiz Muhammad and subsequently Mr. Abdul Rehman D. P. P. appeared for the State. Any way the trial proceeded and was brought to an end. What was not realised was the fact that in the judicial confession of appellant Abdul Aziz, blame for murder of deceased has been thrown on appellant Mst. Khurshid and it is stated that she inflicted hatchet injuries to her husband Murad Ali, killed him and then came to appellant Abdul Aziz and told him that he should also give a hatchet blow to the dead body otherwise he would be implicated. Subsequently after the evidence was recorded and statement under section 342, Cr. P. C. of appellant Mst. Khurshid was recorded, stand was taken by her in unequivocal terms that deceased was killed by appellant Abdul Aziz without her participation or complicity. It is stated at the bar by the learned counsel that defence pleas of both the appellants are opposed to each other and each appellant holds responsible the other for murder, hence there is direct conflict of interests of both appellants and separate Advocates should have been appointed for defence on State expenses instead of one. It is further submitted that learned Advocate appointed on State expenses by the trial Court should have realised this fact because he had copies of the statements of witnesses, challan and other papers, which indicate that there was judicial confession of appellant Abdul Aziz in which respon sibility of murder has been shifted to the other appellant and there was char conflict of interests of the two appellants, which called for a separate defence plea for appellant Mst. Khurshid: It is further stated that Hafiz Abdul Razak is a Junior Counsel and did not cross-examine the witnesses effectively consistent with defence plea of appellant Mst. Khurshid. On this point the correct legal position is that according to sec tion 340, Cr. P. C. a legal right has been afforded to an accused before a criminal Court to be defended by a counsel, if he chooses to do so. So far Sessions cases are concerned, procedure is proscribed in Federal Capital and Sind Courts Criminal Circulars issued by Government of Sind for guidance of criminal Courts. Para. 6 of Chapter VII of the above mentioned circular provides that in all cases in a Court of Session in which any person is liable to be sentenced to death the accused shall be informed by the Sessions Court that unless he makes his own arrangement for legal assistance, the Sessions Court will engage a legal practitioner at 'Government expense to appear on his behalf before that Court. If he is unable to engage his own counsel then a qualified legal practi tioner shall be engaged by the concerned Sessions Court to undertake the defence on Government expenses. From the above-stated provision it is quite apparent that this facility is available to each accused. In the instant case there are two accused and their defences are not only different, but opposed to each other, hence it was incumbent upon the trial Court to have appointed two Adovcates separately for each accused. On the question of prejudice it appears that Hafiz Abdul Razak, who was jointly engaged for both accused on State expenses in the trial Court and got copies of the police statements of the witnesses and other documents, either did not read judicial confession of accused Abdul Aziz or omitted to inform Mst. Khurshid about the confessional statement in which responsibility has been shifted to her positively. Had it been done, she would have given the counsel proper instructions about her defence. In any case, we are of considered opinion that one counsel cannot represent two accused-persons, who have different defences particularly when they are in conflict with each other. It is stated at the bar that Hafiz Abdul Razak is a Junior Counsel and does not have enough experience, which is amply reflected from the record and by the way the witness were cross-examined in the trial Court. The cross-examination is sketchy and meaningless. The defect highlighted above was not even discovered by A. P. P. or D. P. P. who was appearing for State nor dice learned trial judge applied his mind. We feel constrained to observe that proceedings were conducted in the trial Court in regretably slipshod and perfunctory manner without application of mind. After all it was a Sessions case in which two persons are sentenced to death. If some senior or experienced Advocate had been appointed by the trial Court, defect could have been discovered. In the case Kunumal Muhammad and another v. State of Kerala (A I R 1963 Ker. 54) it is held that a note of warning is to be struck against the practice of some of the Sessions Judges in appointing raw and inexperienced juniors to defend the accused in capital cases. If, however only such inexperienced Advocates are available, then it is the primary duty of the trial Judge to come to the aid of accused by putting timely and useful questions. In the instant case we are sorry to say that even the 'learned trial Judge did not apply his mind, otherwise the defect could have been discovered at the earliest opportunity. It would be pertinent to point out here that in similar circumstances that there were separate defences raised by appellants, the Division Bench of our High Court in Confirmation Case No. 31/70 and Criminal Jail Appeals 210 to 212/70 ordered appointment of separate Advocates on Government expenses for appellants in proceedings before the High Court. For facts and reasons stated above, we hold that proceedings in the trial Court ware not conducted properly and serious prejudice has been caused to appellant Mst. Khurshid, which is tantamount to miscarriage of justice. We, therefore set aside the conviction and sentence and remand the case back to the trial Court for de novo proceedings. The trial Court is directed to enquire from the accused whether they want to arrange for C their own defence or want counsel on Government expenses. If they prefer second alternative then trial Court should appoint two Advocates for accused separately. Meanwhile Jail authorities are directed to treat the appellants as under-trial prisoners during the proceedings before the trial Court. Reference for confirmation of death sentence is rejected. M. Y. H. Appeal accepted.