Bashir Ahmed through Mr. Fayyaz Ahmed Abro, advocate

Respondent:

The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh

Date of judgment: 3^rd November, 2016

J U D G M E N T

Naimatullah Phulpoto, J: Appellant Bashir Ahmed was tried by learned Judge, Special Court-1 (Control of Narcotic Substance) Karachi in Special Case No.1216/2014 (490 of 2014) for offence under Section 9(c), Control of Narcotic Substances Act, 1997. On conclusion of trial, Bashir Ahmed was found guilty, vide judgment dated 23.02.2016, he was convicted under Section 9(c), Control of Narcotic Substance Act, 1997 and sentenced to seven (07) years and 06 months R.I and to pay fine of Rs.35000/-. In case of default in payment of fine, accused was ordered to undergo S.I. for 06 months and 15 days more. Appellant was extended benefit of Section 382-B Cr.P.C. Appellant has challenged his conviction and sentence recorded against him through this appeal.

2. Brief facts of the prosecution are that on 04.05.2014, SIP Wazir Ahmed left police station along with his subordinate staff for patrolling and found the present appellant standing in a suspicious manner in street of village Sher Muhammad, police party surrounded and caught him hold. On inquiry, he disclosed his name as Bashir Ahmed. SIP in presence of mashirs conducted personal search of accused and recovered 5 Kgs. charas from his possession. Mashirnama of arrest and recovery was prepared. SIP lodged F.I.R. against accused at police station Gulistan-e-Jouhar, Karachi under section 9(c) of the Control of Narcotic Substances Act, 1997.

3. During investigation, case property was sent to the chemical examiner. Positive report was received. On the conclusion of usual investigation challan was submitted against the accused under section 9(c) of the Control of Narcotic Substances Act, 1997.

4. Trial Court framed charge against the accused under section 9(c) of the Control of Narcotic Substances Act, 1997 at Ex-2. Accused pleaded not guilty and claimed to be tried.

5. Learned Judge, Special Court (CNS) Karachi recorded Examination-in-Chief of PWs, namely, Wazeer Ahmed and Muhammad Nawaz on 08.09.2015 and cross-examination was reserved on the ground that advocate for the accused was not present. However, on 05.11.2015 above named PWs were cross-examined by the defence counsel. Thereafter, prosecution side was closed.

6. Statement of accused was recorded under section 342, Cr.PC at Ex.8 in which accused claimed his false implication in this case and denied the prosecution allegations.

7. Learned trial Court after hearing the learned counsel for the parties and assessment of evidence convicted the accused and sentenced him as stated above. Hence, this appeal is filed.

8. Mr. Fayyaz Ahmed Abro, learned counsel for the appellant mainly argued that examination-in-chief of PWs Nos.1 and 2 was recorded by the trial court on 08.09.2015 in absence of defence counsel. It is contended that trial court had committed illegality in recording the Examination-in-Chief of PWs in absence of defence counsel which is not curable. It is further argued that a fair opportunity was not provided to accused by trial court in the result serious prejudice has been caused to accused. He further argued that on this ground alone the judgment is not sustainable in law and appellant/accused is entitled to acquittal.

9. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh admits that examination-in-chief of PWs 1 and 2 were recorded by the trial court in absence of the defence counsel. Learned APG submits that proper course would be to remand the case to the trial Court for recording evidence of prosecution witnesses afresh in presence of defence counsel and decide case on merits. Learned defence concedes to remand of case to trial court, for recording evidence in presence of the defence counsel in accordance with law.

10. From the perusal of the evidence recorded by the trial court it transpired that examination-in-chief of PWs Nos.1 and 2 was recorded by the trial Court in absence of the defence counsel. Offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 involves capital punishment. Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:

10A. Right to fair trial.- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

11. Under section 340(1), Cr.P.C. accused is entitled, as a matter of right, to be defended by a pleader. The said provision reads as under:-

"340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness.--(1) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."

12. Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars provide that on the committal of the case the Magistrate is required to ascertain from the accused as to whether he intends to engage a legal representative at his own expense otherwise the Sessions Court would provide an Advocate on State expense to defend him. The said Circular reads as under:-

"6. 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 Committing Magistrate at the time of committal, or if the case has already been committed by the Sessions Court that, unless he intends to make his own arrangements for legal assistance, the Sessions Court will engage a Legal practitioner at Government expense to appear before it on his behalf. If it is ascertained that he does not intend to engage a legal representative at his own expenses, a qualified Legal Practitioner shall be engaged by the Sessions Court concerned to undertake the defence and his remuneration, as well the copying expenses incurred by him, shall be paid by Government.

The appointment of an advocate or pleader for defence should not be deferred until the accused has been called upon to plead. The Advocate or pleader should always be appointed in sufficient time to enable him to take copies of the deposition and other necessary papers which should be furnished free of cost before the commencement of the trial. If after the appointment of such legal representative the accused appoints another Advocate or pleader, the Advocate or pleader appointed by the Court may still in its discretion be allowed his fee for the case."

13. Rule 35 of Sindh Chief Court Rules (Appellate Side) also deals with the same subject which reads as under:--

"35. In what matters Advocate appointed at Government cost. When on a submission for confirmation under section 374 of the Code of Criminal Procedure, 1898, or on an appeal from an acquittal or on an application for revision by enhancement of sentence the accused is undefended, an Advocate shall be appointed by the Division Court to undertake the defence at the cost of Government in accordance with the Government notification or rules relating thereto. Such Advocate shall be supplied a copy of the paper book free of cost."

14. From the above legal position, it is clear that a fair opportunity was not provided to the accused at the time of recording Examination-in-Chief of the PWs. If counsel for the accused would have been present, possibility could not be ruled out that he might have raised objection on some legal issues. It is the mandate of the law that the cases involving capital punishment shall not be tried in absence of the counsel for the accused. Reliance is placed upon the case of SHAFIQ AHMED alias SHAHJEE vs. THE STATE (PLD 2006 Karachi 377).

15. In the present case, trial court did not perform its functions diligently and recorded examination-in-chief of two witnesses named above in absence of the defence counsel by ignoring Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, section 340(1), Cr.PC and Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars. As such, the appellant was prejudiced in the trial and defence. Therefore, a miscarriage of justice has been committed in the case. Procedure adopted by the trial court was illegal that was not curable under section 537, Cr.PC. Thus, it has vitiated the trial. Hence, the impugned judgment is required to be set aside.

16. In the light of above discussion, conviction and sentence awarded to the appellant through impugned judgment are set aside, the case is remanded back to the trial Court for re-trial from the stage of recording of evidence of prosecution witnesses and that too in presence of the counsel for the appellant in accordance with law.

17. As a sequel, appeal is allowed to the above extent. Appellant shall be treated as under trial prisoner. However, trial Court is directed to decide the case expeditiously.

J U D G E

Gulsher/PS