P L D 2008 Supreme Court 160 (PLP)

ABDUL HAMEED DOGAR, C J.

Appellant Muhammad Bashir has assailed judgment dated 4-12-2006 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench whereby Criminal Appeal -No.52 of 2001 filed by appellant Muhammad Bashir, Criminal Appeal No.53 of 2001 tiled by complainant Mirza Yasir Ali and Murder Reference No.18 of 2001 for confirmation of death sentence were disposed of.

2. The appeal filed by appellant was dismissed and death sentence awarded to him by learned trial Court was confirmed whereas appeal filed by complainant against acquittal of Sajawal Khan was disposed of as not pressed and murder reference was answered in affirmative.

3. Leave to appeal was granted by this Court on 14-9-2007 to consider whether the appeal involving death sentence can be decided in absence of counsel.

4. Briefly stated facts leading to the filing of instant appeal are that appellant was convicted under section 302(b), P.P.C. and sentenced to death with compensation of Rs.50,000 to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. or in default whereof to further undergo six months' S.I. 'whereas his co-accused Sajawal Khan was acquitted by the learned trial Court. Though appeal challenging his acquittal was filed but the same was not pressed at the time of hearing which was disposed of having not pressed.

5. We have heard learned counsel for the appellant and learned D.P.G. Punjab at length and have gone through the .record and proceeding of the case in minute particulars.

6. Learned counsel for the petitioner vehemently contended that learned trial Court proceeded and decided the appeal of the appellant in absence of advocate. Learned counsel while arguing the matter has referred to para.3 of the impugned judgment wherein it has been mentioned that appeal was filed by Sardar M. Tahir Ayub Khan Sandozai, Advocate. But when it came up for hearing on 13-6-2005 learned Division Bench passed following order:-- "None has entered appearance on behalf of the appellant despite repeated calls. Even no intimation has been sent by the learned counsel for his non-appearance. The Deputy Registrar (Judicial) of this Court shall establish contact with the appellant through Superintendent Jail concerned to intimate him that in case his learned counsel does not appear on the next date, a counsel at State expense shall be appointed to argue his case. A notice shall also be issued to appellant's learned counsel. To be re-listed after doing the needful." It is further pointed out that even on the date of hearing junior of Mr. M. Akhlaq Awan, Advocate appeared before the learned High Court and presented an application for adjournment on the ground that close relative of Mr. M. Akhlaq Awan, Advocate had died in Muzaffarabad and he had to go there to attend this Namaz-e-Janiza as such he was unable to attend the Court.

7. Learned Deputy Prosecutor General Punjab appearing on behalf of State supported the view taken by the learned High Court.

8. As per impugned judgment petitioner has sent an application through Superintendent Jail intimating that Mr. M. Akhlaq Awan, advocate has tiled Power of Attorney on his behalf and would appear on the date of hearing. It is also mentioned in the impugned judgment that on 4-12-2006 the date of hearing junior of Mr. M. Akhlaq Awan, advocate moved an application before the Court that due to death of his near relative in his native town at Muzaffarabad on 3-12-2006 he would not be present and requested for adjournment. The said application was disallowed and appeal of appellant was heard in the absence of his counsel whereby his death sentence was confirmed. We have also gone through the case laws referred by the learned High Court in impugned judgment but are of the view that the same are not relevant to the facts and circumstances of the case in hand. It is provided in High Court (Lahore) Rules and Order, Vol. III, Chapter XXIV, Part C that every person charged with committing an offence with death should have legal assistance at his trial either in a Court of Session or in the High Court. In the case of Muhammad Sharif v. The State PLD 1973 Lah. 365 reference has been made to these provisions by learned High Court and the judgment of District and Sessions Judge was set aside and the matte: was remanded for retrial. It was held in the case of Major (R) Nadir Ali v. The State PLD 2003 Quetta 77 that where accused had been awarded the sentence of imprisonment for life by the trial Court on the basis of evidence recorded in absence of a counsel and he in the circumstances was entitled to be defended by a counsel. Even this Court in the case of Muhammad Baldish v. The State 1986 SCMR 59 has laid down the rule that once appeal is admitted for regular hearing, cannot be dismissed for non-prosecution or on the ground of absence of counsel.

9. In view of above provisions of law, we are of the view that it is the statutory right of the accused to be represented by the counsel in case where capital punishment is awarded. Accordingly, impugned judgment is set aside and case is remanded to the learned High Court for re-hearing of the above mentioned criminal appeal afresh after affording full opportunity of hearing to both parties. It would be appreciated if the matter is decided preferably within a period of three months. M.H./M-126/S Case remanded.