P L D 2025 Sindh 360 (PLP)

Laws Cited

Representation

• ----S. 302(b)---Constitution of Pakistan, Art. 10-A---Criminal Procedure Code (V of 1898), S. 537---Qatl-i-amd---Appreciation of evidence---Procedural lapses---Fair trial---Scope---Right to a competent and adequately prepared counsel---Accused was charged for committing murder of his wife by strangulating her---Record showed that the matter was transferred to the Trial Court on 23-01-2020---On the same day, the Trial Court recorded the depositions of the complainant and an eye-witness, however, their cross-examinations were deferred due to the absence of the appellant's original defence counsel, who had cited health concerns---Case was then adjourned to 01-02-2020, but on that date, defence counsel remained absent---Instead, an advocate assigned to represent the pauper accused appeared before the Court---Record did not confirm whether said advocate was appointed or provided with the case documents or granted sufficient time to prepare for the defense---Despite that, the Trial Court proceeded to conduct cross-examinations of complainant and an eye-witness, and record the depositions of the remaining five prosecution witnesses---All the said witnesses were cross-examined by the said advocate on the same day---Notably, the case diary indicated that original defence counsel later submitted a statement withdrawing his Vakalatnama---Sudden assumption of defense responsibilities by an advocate without documented access to the case files or adequate preparation time, rendered the cross-examinations ineffective and merely perfunctory---Said failure directly compromised the appellant's right to effective legal representation, particularly in a capital punishment case---Withdrawal of Vakalatnama of original defence counsel and the subsequent appointment of an advocate were executed without judicial scrutiny or the appellant's explicit consent, thereby violating the right to counsel of choice under Article 10-A of the Constitution---Right to a fair trial entailed not only access to legal representation but also the right to competent and adequately prepared counsel---Procedural lapses in the case reduced the trial to a mere formality, depriving the appellant of a meaningful defence---Absence of proper preparation in cross-examinations resulted in miscarriage of justice---It was a fundamental right of every accused to be represented by legal counsel of their own choice---In cases involving capital punishment, the law mandated that the accused must be provided with legal representation and in situations where the accused could not afford a lawyer, the State bore the responsibility of covering the legal expenses---Accordingly, the Sessions Court or Special Court was duty-bound to appoint a legal practitioner at the State's expense to defend the accused---Procedure adopted by the Trial Court was irregular and unlawful and such defects could not be cured under S. 537, Cr.P.C.---No evidence was on record to indicate that the cross- examinations of the prosecution witnesses were conducted by a duly authorized counsel representing the appellant---Instead, the record merely reflected that an advocate, whose formal appointment was not documented anywhere in the case files, undertook the cross-examinations---Such fact raised a strong presumption that the cross-examinations were either not conducted properly or not conducted at all, especially given the fact that on 01-02-2020, the court recorded the testimonies of prosecution witnesses and also conducted the cross-examinations of seven prosecution witnesses on the same day---Furthermore, there was no mention in the record of whether the subsequent appearance of appointed advocate was properly appointment or was provided with the necessary case documents or given adequate time to prepare---Such concern was particularly critical since his appointment coincided with the same day on which the prosecution evidence was recorded---Defense counsel played a pivotal role in safeguarding an accused's rights, including raising objections to improper questions, challenging the admissibility of evidence and ensuring that the accused received a fair trial---When an accused is deprived of competent legal representation or when a defence counsel is appointed without proper preparation, it severely undermines the fairness of the trial---Said issue becomes even more critical in cases where capital punishment is at stake, as the right to effective legal representation is a fundamental constitutional and legal safeguard---In the light of said deficiencies, the appellant's conviction and sentence could not be sustained, which was set aside and case was remanded for de novo trial and decision afresh---Appeal was partly allowed.
• 3. The appellant's Counsel mainly argues that the trial court recorded the examination-in-chief of two prosecution witnesses on 23.1.2020 and five prosecution witnesses on 01.2.2020 without the presence of defense Counsel. Constituting a legal violation. He emphasizes that capital punishment cases mandate the presence of defense Counsel during proceedings. The court record indicates that the trial court recorded the examination-in-chief in absence of defense counsel. Further he contended that the trial court flagrantly violated Article 10-A of the Constitution by depriving the appellant of his fundamental right to a fair trial, particularly his entitlement to legal representation of his choice in a capital case. Highlighting procedural irregularities, counsel emphasized that the cross-examination of key witnesses, including PW-1, was conducted by an unauthorized advocate (Mr. Asad Ali Buledi), whose appointment lacked judicial approval and the appellant's consent, rendering the defense ineffective. Further, the trial court permitted abrupt changes in Counsel first Mr. Muhammad Ali Pirzada was engaged by accused and later Mr. Asad Ali Buledi without ensuring continuity, preparation time, or access to case documents, thereby vitiating the cross-examination process. Counsel argued that the State's failure to safeguard the appellant's right to competent, prepared counsel constituted a miscarriage of justice, warranting acquittal or remand for a retrial compliant with due process.
• 5. We have carefully considered the arguments put forth by the learned counsel for the appellant and the learned Deputy Prosecutor General (DPG) for the State. We have also meticulously examined the available evidence on record. A review of the case file indicates that the matter was transferred from the Court of the learned IInd Additional Sessions Judge, Kambar @ Shahdadkot, to the Ist Additional Sessions Judge on 23-01-2020. On the same day, the trial Court recorded the depositions of the complainant, Abdul Rasool Brohi (PW-1, Exh.03), and an eyewitness, Zahoor Ahmed (PW-2, Exh.04). However, their cross-examinations were deferred due to the absence of the appellant's original defense counsel, Mr. Muhammad Ali Pirzada, who had cited health concerns. The case was then adjourned to 01-02-2020, but on that date, Mr. Pirzada remained absent. Instead, Mr. Asad Ali Buledi, an advocate assigned to represent the pauper accused, appeared before the court. There is no record confirming whether Mr. Buledi was appointed or provided with the case documents or granted sufficient time to prepare for the defense. Despite this, the trial court proceeded with the following steps:
• "...an accused is required to be defended by a counsel of his choice as a matter of right. If an Advocate appears on behalf of the accused then he is required to be allowed to defend the accused. In an offence involves capital punishment, the law protects the rights of the accused as a duty has been cast upon the State to bear the expense of the Advocate if the accused is unable to engage an Advocate. When the committal proceedings were being conducted then at the time of committing the accused to the Court of Session the Magistrate was required to inquire form the accused as to whether he would like to engage Advocate of his choice and in case he was unable to do so then the accused was required to be informed that the Sessions Court would provide him an Advocate on State expense to defend his case."
• 8. The superior Courts have frequently held that in cases involving capital punishment, it is the duty of the trial Court to ensure that the accused is represented by the Counsel of his own choice. Such matters, specially the stage of evidence, must always proceed in the presence of the counsel for the accused. Proceeding of such cases with accused being unrepresented has been held to be an illegality not curable under section 537, Cr.P.C. The Courts have insisted upon this right of accused as per Article 10-A of the Constitution of Pakistan 1973, section 340(1) of the Code of Criminal Procedure 1898, Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars and Rule 35 of the Sindh Chief Court Rules (Appellate Side). The Hon'ble Superior Courts have also ruled that in case the accused is using the absence of his counsel as delaying tactic, the trial Court must proceed with the case after giving some reasonable adjournments in order to avoid the abuse of process of law. In a case reported as Ghulam Rasool Shah and another v. The State (2011 SCMR 735), Hon'ble Supreme Court of Pakistan has held that " Notwithstanding the afore-stated observation, we are of the view that in a case of capital punishment a Court cannot come to a just decision unless the credibility of the witnesses is tested on the touchstone of cross-examination, Injustice is likely to occur in a case where cross-examination on the witnesses was not conducted either by the Counsel provided at State expenses on account of unwillingness of the accused or by the accused themselves. Even, the cross-examination conducted by the accused himself has not been considered to be substitute of cross examination conducted by a Counsel". There is no evidence on record to indicate that the cross-examinations of the prosecution witnesses were conducted by a duly authorized counsel representing the appellant. Instead, the record merely reflects that an advocate, whose formal appointment is not documented anywhere in the case files, undertook the cross-examinations. This raises a strong presumption that the cross-examinations were either not conducted properly or not conducted at all, especially given the fact that on 01-02-2020, the court recorded the testimonies of prosecution witnesses and also conducted their cross-examinations of seven prosecution witnesses on the same day. Furthermore, there is no mention in the record of whether the subsequently appearance of appointed advocate, Mr. Asad Buledi, was properly appointed or provided with the necessary case documents or given adequate time to prepare. This concern is particularly critical since his appointment coincided with the same day on which the prosecution evidence was recorded. A defense counsel plays a pivotal role in safeguarding an accused' rights, including raising objections to improper questions, challenging the admissibility of evidence, and ensuring that the accused receives a fair trial. When an accused is deprived of competent legal representation or when a

Headnotes / Summary

Judgment & Decree