2024 P Cr. L J 772
[Balochistan]
Before Naeem Akhtar Afghan, CJ and Rozi Khan Barrech, J
MUNIR AHMED--- Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 36 and Murder Reference No. 5 of 2019, decided on 15th August,
2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 365 & 377---Anti -Terrorism Act (XXVII of 1997), S. 7--- Juvenile Justice
System Act (XXII of 2018), S.8---Qatl -i-amd, abduction for ransom, sodomy and terrorism --
-Appreciation of evidence ---Age, determination of ---Principle ---Accused was convicted for
the offences charged and was sentenced to death ---Plea raised by accused was that he was
juvenile at the time of commission of offense ---Plea raised by accused was that Trial Court
appointed defence counsel at State expense who did not cross -examine prosecution witnesses
and no inquiry regarding age of accused was conducted before trial ---Validity ---When
controversy regarding age of person cannot be settled through documentary evidence and
medical due to different opinions, preference is always given to medical opinion---High Court set aside conviction and sentence awarded to accused and remanded the matter to Trial Court to give opportunity to accused to engage a counsel of his choice and in case accused was unable to engage any counsel then Trial Court would appoint any senior counsel at State expenses ---High Court directed to re -summon prosecution witnesses and the counsel so
appointed be given a fair chance to cross -examine them ---High Court directed Trial Court to
hold inquiry under section 8 of Juvenile Justice System Act, 2018, and if it was established that accused at the time of occurrence was a juvenile, then trial of accused would be conducted under Juvenile Justice System Act, 2018---Appeal was allowed accordingly.
2012 SCMR 1400 and Muhammad Aslam and others v. The State and another PLD
2009 SC 777 rel.
(b) Counsel and client ---
----Pauper counsel ---Responsibility ---Counsel who accepts a dock- brief and for a fee paid by
the state undertakes to defend a prisoner without trying to know anything about the case offends against the tradition of his profession--- If such counsel is not ready for the defense, it
is his duty to ask for time and if necessary for adjournment ---Unseeming hurry makes
defense in important cases of crime impossible and is likely to affect result of the trial.
(c) Criminal Procedure Code (V of 1898) ---
----S. 340 (1) ---Right to be defended---Pauper counsel, appointment of ---Pre -condition---
Appointment of pleader for defense should not be denied until accused has been called upon to plead ---Pleader should always be appointed in sufficient time to enable him to take copies
of documents and other necessary papers, which should be furnished free of cost before commencement of trial ---Such right of accused includes proper representation by pleader,
which has been kept in view by the Legislature by inserting 340(1), Cr.P.C.
(d) Constitution of Pakistan ---
----Arts. 9 & 10A ---Rights to "life", "liberty" and "in accordance with law" ---Scope ---
Criminal charge is not a mere paperwork against a 'person' but it is the prosecution (law
enforcement agency) which insists on punishment to such person, to either deprive the charged person of his life or least liberty as per criterion of punishment provided for the charged offence--- Phrase 'in accordance with law' comes into play whenever a person is
charged with an offence and required to be dealt with all ease and facilities which could
fulfill the phrase 'in accordance with law' ---Such rights are further insisted by insertion of
Art. 10A in the Constitution.
Abdul Khair Achakzai for Appellant.
Naj-ud-Din Mengal and Syed Kamal Hussain for the Complainant.
Zahoor Ahmed Baloch, Assistant Advocate General and Abdul Latif Kakar, A.P.G.
for the State.
Date of hearing: 21st June, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through the instant appeal, the appellant has assailed
the judgment dated 23.04.2019 (hereinafter "impugned judgment") passed by the court of
learned Special Judge Anti -Terrorism Court Pishin at Pishin ("trial court") in case FIR No.
01 of 2019 dated 18.02.2019 registered with Levies Thana Barshore, Tehsil and District
Pishin under sections 302, 377, 365- A and 34, P.P.C. whereby the appellant was convicted
and sentenced as under:
"124. The under trial Munir Ahmed son of Habibullah, caste Kakar Barakzai, resident of Killi Kala Viala, Tehsil Barshore, District Pishin Quetta Division in the province of
Balochistan is accordingly convicted of the commission of the offences under section
6(1)(a) and (b) read with section 6(2)(a) (causing death); section 6(2)(e) (kidnapping
for ransom) and section 377, P.P.C. read with section 511, P.P.C. (attempt to commit sodomy) read with (Ss. 302, 365- A, 377 and 511, P.P.C. and S. 7 ATA, 1997) and is
sentenced to death twice for causing death and kidnapping for ransom under section 7(1)(a) and section 7(1)(a) and section 7(1)(e) of the Anti -Terrorism Act, 1997
respectively and directed to be hanged by the neck till he is dead in accordance with the provisions of section 368, Cr.P.C. subject to the confirmation of the death penalty by the Hon'ble High Court of Balochistan, Quetta in accordance with the provisions of section 374 Cr.P.C.
125. In addition to the award of the sentence of death penalty twice, the convict Munir Ahmed son of Habibullah is sentenced in prison for ten (10) years rigorous imprisonment for the commission of the offence of an attempt to commit unnatural offence with deceased as envisaged by the provisions of section 377 read with section 511, P.P.C.
126. The two sentences of death penalty under section 6 read with section 7 of the Anti -
Terrorism Act, 1997 on the one hand and the sentence of imprisonment of ten (10) years under section 377 read with section 511 of the Pakistan Penal Code, 1860 would run concurrently because of all of the aforementioned separate offences arising out of the same transaction……."
The trial court has also submitted Murder Reference No. 05 of 2019 seeking
confirmation or otherwise of the capital punishment awarded to the appellant. As both these matters are interconnected and interlinked, so are being disposed of through this single judgment.
2. Briefly stated the prosecution version as set forth in the FIR (Ex.P/12- A) recorded on
the statement (Ex.P/1 -A) of the complainant Paidin son of Abdullah Jan caste Kakar, resident
of Killa Kala Viala, Tehsil and District Pishin is that on 16th February 2016 at 3:00 pm his minor son namely Muhammad Fareed (deceased) age about 10/11 years went to the local mosque for study and came back at 4:30 pm. Thereafter he again went out of home and did not return. Afterwards, the complainant and the rest of the members of the family searched Muhammad Fareed but failed to find him. On 18th February 2019, at about 2:30 pm, his elder son, namely Bahauddin, received a message on his face book ID through unknown accused persons to the effect that his son Muhammad Fareed was in their custody and would be murdered if the ransom amount of Rs.10,00,000/ - was not managed and paid to them in Pishin
Bazar. Thereafter no contact was made. Hence, the crime report.
3. After registration of the FIR, the investigation was conducted by Muhammad Essa
Naib Risaldar (PW- 12). During the investigation on 25.03.2019, he arrested the acquitted
accused Ahmed Shah, who made the disclosure before levies on 25th March 2019 about the
commission of the offence and in the light of his disclosure, the appellant was arrested, and on the same date, the dead body of the deceased Muhammad Fareed was recovered on the
pointation of the appellant.
4. On completion of the investigation, the appellant and acquitted accused were sent up
to face trial. They were charged under sections 302, 365- A, 377, 511 and 344, P.P.C. read
with sections 6(1) and 6(2)(a) and (c) of the Anti -Terrorism Act, 1997 (in short, "the Act").
They pleaded not guilty and claimed trial. At the trial, the prosecution produced thirteen
witnesses in all, thereafter, they were examined under section 342, Cr.P.C wherein they denied the prosecution's allegations and truthfulness of the witnesses produced by the prosecution. They, however, neither opted to produce any witnesses in their defense nor to appear as their own witnesses on oath under section 340(2), Cr.P.C.
On the conclusion of the trial, the trial court acquitted the co- accused Ahmed Shah and
convicted and sentenced the appellant in the above terms.
5. Learned counsel for the appellant inter alia, contended that the appellant was below
18 years at the time of occurrence. Further contended that the learned trial judge has not duly exercised the jurisdiction vested in him under Section 8 of the Juvenile Justice System Act, 2018 (referred hereinafter as "the Act 2018"), according to which the trial court was under
obligation to hold an inquiry before conducting the trial in order to settle the question of age
whether the accused at the time of occurrence was above 18 years or otherwise. Learned
counsel further contended that the opportunity of a fair trial had not been afforded to the
appellant; therefore, the impugned conviction is not legally sustainable. He concluded that in view of serious illegalities as well procedural irregularities, the impugned judgment, on no
touchstone, could be considered delivered according to law. He submitted that the impugned
judgment be set aside and the appellant be acquitted in the interest of justice or in the
alternative, the case be remanded to the trial court for affording an opportunity of a fair trial to the appellant.
6. As against that, learned Assistant Advocate General and learned APG appearing on
behalf of State assisted by learned counsel for the complainant, inter alia, contended that the dead body of the deceased was recovered on the pointation of the appellant, which is duly corroborated by the circumstances and the ocular account furnished by the prosecution; therefore, the impugned judgment, being well -reasoned, is legally correct. Further contended
that the appellant has committed heinous offences, therefore, the impugned judgment cannot be legally set aside merely on the basis of formal defects.
7. Apart from merits of the case, the preliminary points which have emerged for
consideration in the first instance are as under:
i) The appellant filed an application before the trial court, wherein he had taken the plea that he was below the age of 18 years at the time of the commission of the alleged offence.
ii) Whenever a question arises before the court as to whether the accused is a juvenile offender and is subject to the jurisdiction of a Juvenile Court, the court is required to hold an inquiry into the matter.
iii) That whether the appellant was provided legal assistance and has been denied his right to defend himself?
Since, the above preliminary points are of utmost importance and same touch the
roots of the case, therefore we opted to hear learned counsel for the parties and learned APG on the same before entering into merits of the case.
8. It is the plea of the appellant that he was hardly 17 years of age at the time of the
alleged offence. Perusal of case file reveals that the appellant did not engage any counsel at the trial; therefore, the trial court appointed Mr. Saifullah, Advocate on 06.04.2019 counsel for the appellant at state expenses and later upon his withdrawal Mr. Abdul Ali Achakzai,
Advocate was appointed pauper counsel for the appellant on 08.04.2019. It is worthwhile to
mention here that after examination of the appellant under section 342, Cr.P.C. on 13.04.2019, Mr. Abdul Ali Achakzai, Advocated filed an application on the same date under section 8 of the Act 2018 and the matter was fixed for 15.04.2019. On the said date, learned counsel for the complainant produced school and NADRA records, including "B" Form of
the appellant in respect of his age. Without calling the representatives of NADRA and the
administration of the concerned school, the trial court placed the said documents on record.
On the same date, Mr. Abdul Ali Achakzai, Advocate withdrew the application filed under section 8 of the Act 2018.
9. While recording conviction the trial court held that "hence, the availability of the
most authentic documents on the record consisting of the school and NADRA record including the "B" Form, explicitly substantiate and establish the fact that the accused Munir Ahmed son of Habibullah was about 19 years of age at the time of the commission of the alleged offence."
10. The trial court accepted the documents, i.e. record of NADRA, School certificate and
'B' Form, without testing their authenticity and genuineness. The said documents which were produced by the complainant were photocopies. It was the duty of the trial court to have called for the original record and to summon and examine the authors and the custodians of record/documents to determine the genuineness of the same and to also provide an opportunity of cross -examination to learned defense counsel. Such like documents should
never be accepted without first testing their authenticity and genuineness, which would be possible only if the procedure prescribed by the Qanun- e-Shahadat Order 1984 was followed.
11. Record transpires that the complainant had relied upon the appellant's date of birth,
his school leaving certificate and NADRA record, according to which the age of the appellant was admitted as 03.04.2020, but the trial court did not conduct any inquiry required
under section 8 of the Act 2018. It is well settled by now that when controversy regarding the
age of the accused person could not be settled through documentary evidence and medical
due to different opinions, preference is always given to the medical opinion. Reliance in this regard is placed on 2012 SCMR 1400.
12. The Criminal Procedure Code does not prescribe any procedure for the determination
of the age of an accused person. However, the Act 2018 was enacted to protect the rights of children involved in criminal litigation, which provides a procedure in matters falling within its purview. Article 8 of the Juvenile Justice System Act, 2018 (hereinafter "the Act") stipulates:-
"8. Determination of age. Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer -
in-incharge of the police station or the investigation officer shall make an inquiry to
determine the age of such person on the basis of his birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer" -
At the very outset, it is observed that whenever a question arises before a court as to
whether the accused is a juvenile offender and is subject to the jurisdiction of a Juvenile Court, the court is required to hold an inquiry into the matter.
13. In the case in hand, there can be no two opinions that in Section 8 of the Act 2018,
there is a statutory command that the court should hold an inquiry when it is confronted with a question about the age of an accused person. Since the purpose of an inquiry, as we have already seen, is to find out the truth, it should be spread over a fairly broad spectrum. The court should not only take into consideration the documents produced by the parties, but where necessary, it should also record statements of the witnesses. It should also requisition a medical report, which means a clinical and radiological examination of the accused or what
is called his ossification test. In our opinion, a plain reading of section 8 shows that this is
mandatory unless there are strong reasons to dispense with the same. On the conclusion of the inquiry, the court should give its findings after considering all the evidence brought before it in accordance with the established principles of criminal jurisprudence.
Hence, determination of child/adult requires recording of evidence in view of Qanun-
e-Shahadat Order, 1984. This aspect has also been elaborated by the Supreme Court of
Pakistan in a salutary judgment handed down in the case of Muhammad Aslam and others v.
The State and another (PLD 2009 Supreme Court 777), the relevant portion of which is
reproduced as under: -
"---S. 302(b) ---Juvenile Justice System Ordinance (XXII of 2000), S. 7 --- Qatl-i-amd
---Death sentence---If a convict, wishes to avoid death penalty on account of being less than 18 years of age, the onus would be on him to prove his minority for the purpose ---Where an accused claims minority then such a plea must be taken by him at
the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the far end of the trials or at appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner ---
Whenever such a plea is raised, the courts of law could fall into error by accepting the same only because some school certificate so said ---Provisions of S. 7, Juvenile
Justice System Ordinance, 2000 mandate a proper inquiry into the said issue wherein
the courts should require production of evidence for proof of age in accordance with the
manner and the procedure prescribed by the Qanun- e-Shahadat, 1984 and wherein the
other side is also afforded opportunities which are envisaged and guaranteed by the Qanun- e-Shahadat ---Entertaining documents handed down from across the bar and
then acting upon the same, would be fraught with the danger of the courts being misled into passing unwarranted Orders ---Such -like documents should never be accepted
without first testing their authenticity and genuineness which would be possible only if the procedure prescribed by the Qanun- e-Shahadat was followed and where the accused
was also put through the requisite medical examination--- Exercise under -taken by the
Trial Court as also by the High Court, to resolve the issue in question, in the present case, was disapproved and Supreme Court observed that consequent findings about the minority of the convict could not be sustained--- Supreme Court further observed that
the court would have ordinarily remanded the matter to the Trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh……."
14. As in the aforesaid circumstances, the requirement of conducting an inquiry according
to the provisions of Qanun- e-Shahadat Order, 1984 is imperative, which has not been done
by the trial court, leaving the scope of agitation before this Court; hence no other option is left with this Court except to direct the trial court to proceed with the matter stricto sensu in the spirit of section 8 of the Act 2018; thereby recording the statements of the representative of NADRA, representative of the concerned school in accordance with the law, as well as, the guidelines enunciated by Supreme Court of Pakistan in Muhammad Aslam's case referred supra.
15. The order sheet dated 06.04.2019, which reads as under:
16. Record transpires that after submission of challan, the trial court issued production
warrant of the appellant on 26.03.2019 and the matter was fixed for 28.03.2019.
On 28.03.2019 documents of the case were handed over to the appellant under
Section 265 -C, Cr.P.C and the matter was fixed for 06.04.2019.
On 28.03.2019 the appellant had not engaged any lawyer for his defense.
On 06.04.2019 Mr. Saifullah, Advocate, was appointed as counsel for the appellant by
the trial court at state expenses and charge was read over to the appellant on the same date,
and the matter was fixed for 08.04.2019.
On 08.04.2019 Mr. Saifullah, Advocate withdrew his power, and the trial court
appointed Mr. Abdul Ali Achakzai, Advocate, as counsel for the appellant at state expenses as was present in the court. On the same date i.e. 08.04.2019, the trial court examined eight material prosecution witnesses i.e. PW- 1 to PW -8.
The order sheet of 08.04.2019 reads as follows:
17. On 09.04.2019 three more prosecution witnesses were examined as PW -9 to PW -11
by the trial court. On 12.04.2019 statements of two witnesses, i.e. PW -12 and PW -13 were
recorded by the trial court whereafter the prosecution closed its side, and the matter was fixed for recording statement of the appellant under section 342 Cr.P.C.
18. It is manifest from the above order sheets of the trial court that the trial commenced
immediately upon the appointment of defense counsel at state expenses by the trial court. Neither copies of the case were handed over to the defense counsel to study the case, nor was sufficient time given to the pauper counsel enabling him to take copies of deposition and other necessary papers. No such opportunity was given by the court to pauper counsel and within such a short period to fully acquaint himself with the facts of the case, far less to have
a private consultation with the accused he was called upon to defend but as many as eight material prosecution witnesses were examined on the date when defense counsel was appointed by the trial court and on the next date further three material prosecution witnesses
were examined by the trial court.
19. It is true that the defense counsel who took the responsibility to defend the appellant
facing serious charges did not prepare any grievance nor requested for adjournment. It is
worthwhile to mention here that the pauper counsel did not cross -examine the material
prosecution witnesses, i.e. PW -1, PW -2, PW3, PW -6 and PW -7 and he relied upon the cross -
examination of learned counsel for the acquitted co- accused Ahmed Shah.
Record reveals that the other prosecution witnesses were put only a few unimportant
questions in the cross -examination, which had little bearing on the case. There is no cross -
examination worth the name on the file, which could satisfy us that Mr. Abdul Ali Achakzai, Advocate, was really performing his duty as a defense counsel in a murder case. It transpires that without taking instructions from the appellant and without studying necessary documents for preparing the brief for properly defending the appellant, Mr. Abdul Ali Achakzai, Advocate proceeded with the trial.
20. Of course, counsel who accepts a dock- brief and for a fee paid by the State undertakes
to defend a prisoner without trying to know anything about the case offends against the
traditions of his profession. If he is not ready for the defense it is his duty to ask for time and,
if necessary, for adjournment. Such unseemly hurry makes defense in important cases of
crime impossible and is likely to affect the result of the trial.
21. The appointment of a pleader for defense should not be denied until the accused has
been called upon to plead. The pleader should always be appointed in sufficient time to
enable him to take the copies of documents and other necessary papers, which should be
furnished free of cost before commencement of the trial. Such rights of the accused would
include a proper representation by a pleader, which even has been kept in view by the legislature in Code of Criminal Procedure, 1898 by inserting section 340(1), which reads as:
"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."
22. Section 340 of the Code of Criminal Procedure also gives an accused person the right
to a reasonable opportunity to defend himself by counsel.
23. The appointment of an Advocate for a pauper accused is an affirmation to the
guarantee provided by Articles 9 and 10- A of the Constitution of Islamic of Pakistan 1973
("the Constitution") which read as under:
"9. Security of person. No person shall be deprived of life or liberty save in accordance with law.
10-A. 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."
Article 9 of the Constitution prima facie assures that no harm or prejudice should be
caused to the 'life' or 'liberty' of a citizen except in 'accordance with law'. There can be no denial of the fact that a 'criminal charge' is not a mere paperwork against a 'person', but it is the prosecution (law enforcement agency) which insists on punishment to such person which shall either deprive the charged person of his life or least liberty, as per criterion of punishment provided for the charged offence. Thus, the phrase 'in accordance with law' comes into play whenever a person is charged with an offence hence requires to be dealt with all ease and facilities which could fulfill the phrase 'in accordance with law'. Such rights, however, were further insisted by the insertion of Article 10- A in the Constitution.
24. Thus, it can safely be concluded that the guarantee, provided by Articles 9 and 10- A
of the Constitution, that any deprivation of life or liberty shall only be in 'accordance with law' would include all the rights of the accused charged of a criminal offence to the extent of his trial. Hence such rights of the accused would include a proper representation by a pleader which even has been kept in view by the legislature in Code of Criminal Procedure, 1898 by
inserting section 340(1).
25. From the above, it follows that the accused is required to be defended by the counsel
of his own choice as a matter of right, especially in the case of capital punishment. The law
protects the right of the accused as a duty which cast upon the State to bear the expenses of Advocate if the accused is unable to engage an Advocate due to financial restraints. The concept of "counsel of his own choice" has very vast meanings. It is incumbent upon the State to provide the counsel to whom the accused reposed confidence and feels safe in his hand during the course of the trial. If the Government Ex- chequer can bear the expenditure of
paying a heavy fee to the Public Prosecutor/Special Public Prosecutor to establish the clutches of guilt, then if the same analogy is applied in the case of the accused persons, the responsibility of the State equally renders to pay the expenses of defense counsel to the accused persons to meet the ends of justice. Therefore, the trial court has denied the fundamental right to the appellant by not affording an opportunity to the defense counsel to take a brief of the case from the appellant.
26. Notice was issued to Mr. Abdul Ali Achakzai, Advocate who is an advocate of Pishin
and who was appointed as counsel for the appellant by the trial court at state expenses. Notices were also issued to Secretary Balochistan Bar Council and learned Advocate General with directions to provide the details/list of counsel for pauper accused maintained by Balochistan Bar Council/Law Department Government of Balochistan. On 09.05.2022, on query by the court, Secretary Balochistan Bar Council informed that Mr. Abdul Ali Achakzai, Advocate, was issued license for the lower court in June 2012, and he was issued a license as an Advocate of the High Court in May 2015. The matter was then fixed for 23.05.2022 by this court, and the notice issued to Mr. Abdul Ali Achakzai, Advocate who
was appointed as counsel for pauper accused by the trial court was received back unserved with the report of Superintendent District and Sessions Judge, Pishin dated 28.05.2022 to the effect that Mr. Abdul Ali Achakzai, Advocate stated that he is not counsel for the party and he has no concern with the case in hand.
27. The Secretary Balochistan Bar Council stated that no list of Advocates had been
issued ever by the Balochistan Bar Council to the trial courts for selecting/appointing Advocates for the pauper accused.
Learned APG also made any statement that the Prosecution Department has not ever
issued a list of Advocates to the Presiding Officers for their appointments for pauper accused at the trial.
28. On 21.06.2022, Mr. Ajmal Khan Kakar, Advocate/president of Quetta District Bar
Association, was in attendance on court notice with the statement that in the previous year, a meeting was convened by the office bearers of District Bar Association Quetta with District and Sessions Judge Quetta in pursuance whereof, list of Advocates having the practice of at least five years was provided to learned District and Session, Judge Quetta by the District Bar Association Quetta for their appointment as counsel for pauper accused for the minor offences; however, no list of Advocates was provided to learned District and Sessions Judge Quetta for appointment of Advocates for pauper accused facing offences punishable for imprisonment for life or death penalty.
29. It reveals that no procedure had been laid down either by this court or the Prosecution
Department for appointment of counsel for pauper accused in cases of capital punishment. We may observe here that this is not the first case which has come to our notice in which proper attention has not been paid for appointment of counsel for pauper accused. It is observed that in cases involving capital punishment, mostly junior Advocates are appointed by the presiding officer of the trial courts, who had not done the due labor, which has hampered the object of a fair trial. Under such circumstances, we propose the following guidelines to be followed by the concerned District and Sessions Judges of the province of Balochistan for appointing an Advocate for pauper accused at state expenses:
i. The Advocate should be able and competent enough to effectively and meaningfully represent the accused and render substantial assistance to the court.
ii. The Advocate should be afforded sufficient time to study and prepare the case and arrangements shall be made for meeting of accused with the Advocate.
iii. An Advocate may be appointed in maximum two cases at one time and before
conclusion of those two cases, he/she should not be appointed in a fresh case.
iv. He/she should be a regular practitioner in the concerned District Court, having
experience as an Advocate of the High Court. He/she should have good reputation in the bar and litigants.
v. In case, after accepting the engagement, the Advocate neglects or refuses to discharge his duties properly, the presiding officer may remove the Advocate and appoint another Advocate in his place.
30. For the reasons supra, we are of the considered opinion that the conviction recorded
and sentence awarded to the appellant is not sustainable; therefore, the appeal filed by the appellant Munir Ahmed son of Habibullah against the impugned judgment dated 23.04.2019 passed by learned Special Judge Anti -Terrorism Court Pishin in Case No. 02/2019 is
accepted. His conviction and sentence are hereby set aside. The case is remanded to the trial court with direction to give an opportunity to the appellant to engage a counsel of his choice and, if he is unable to do so, a senior counsel at State expenses be appointed by the trial
court. Thereafter the P.Ws. be re- summoned, and the learned counsel so appointed be given a
fair chance to cross -examine them. Further, the trial court shall hold an inquiry under section
8 of the Act, 2018, and therefore if it is established that the appellant at the time of the
occurrence was a juvenile, then the trial of the accused be conducted under the Act ibid. Needless to mention here that the appellant shall be treated as an under -trial prisoner by the
court as well as by the jail authorities.
The Murder Reference is answered in the negative.
MH/127/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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