JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal.No.S-42 of 2019.

______________________________________________________________

DATE                                       ORDER  WITH  SIGNATURE  OF  HON’BLE  JUDGE

_______________________________________________________________

 

For hearing of main case.

 

06.12.2021

 

                        Mr. Habibullah Ghouri, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl.P.G for the State.

 

                        =  *  = * = * = * = * =

 

IRSHAD ALI SHAH, J.- It is alleged that the appellant with rest of the culprits, in furtherance of their common intention, committed murder of Muhammad Yousif, by causing him fire shot injuries, for that the present case was registered and on due trial, he for the said offence was convicted and sentenced to undergo imprisonment for life and to pay rupees Five Lacs to the legal heirs of the said deceased as compensation by learned 1st Additional Sessions Judge/MCTC, Jacobabad, vide judgment dated 27.05.2019, which is impugned by the appellant before this Court by preferring the instant appeal from Jail.

                        The perusal of diary dated 14.05.2019 transpires that Mr.Daniyal, who was representing the appellant as his counsel withdrew his Vakalatnama on the said date; such withdrawal was allowed and then the appellant was directed to engage a Counsel for him, and on account of his failure to engage Counsel on the very date of hearing, Mr.Jan Muhammad Manjo was appointed for him as his Counsel on State expenses and then examination-in-chief of PWs Ghulam Yasin and Izhar Ali Shah (both the material witnesses) was recorded by learned trial Court, without actual participation of Mr.Jan Muhammad Manjo, Advocate in the proceedings of the case. Such exercise is contrary to the mandate contained by Paragraph    6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars, which prescribes that every criminal case entailing capital punishment could only be proceeded on appearance of qualified legal practitioner, engaged by the accused himself or engaged for the accused by the State. Non compliance of above provision of law has occasioned in failure of justice.

                        In case of Purna Chandra Mondal vs. The State                           (1970 PCr.LJ-746), it has been observed by the Honourable Court that;

Obviously, the above provisions were made in aid of section 340 of the Code of Criminal Procedure which confers right on every accused person brought before a criminal Court to be "defended" by a lawyer, which is not the same thing a being "represented" by a lawyer. That right evidently extend to access to the lawyer for private consultations and also affording the later an adequate opportunity of preparing the case for the defence. A last moment appointment of an Advocate for defending a prisoner accused of a capital offence not only results in a breach of the provision of the 6th paragraph of Chapter XII of the Legal Remembrancer's Manual, 1960 and frustrates the object behind the elaborate provisions of that Chapter, such an appointment results also in a denial to the prisoner‑ of the right conferred on him by section 340 of the Code”.

           

                        Learned counsel for the parties when were confronted with above omission, consented for remand of the case by contending that the right of fair trial to defend his case, is also prescribed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which has been denied to the appellant at trial, which has prejudiced him seriously in his defence.

                        In view of above, the impugned judgment is set-aside with direction to learned trial Court to record evidence of the above said witnesses afresh, in presence of learned counsel for the parties and the appellant and then to dispose of the very case in accordance with law afresh independently, without being influenced by the findings which have been recorded in earlier judgment.

                        The instant Criminal Jail Appeal is disposed of accordingly.

                                                                                               

                       JUDGE