SAJID MUHAMMAD vs THE STATE

' IJAZ-UL-HASSAN KHAN, J.--- The present appeal is directed against the judgment, dated 19-7- 2004, passed in case No, 14 of 2002, arising out of F.I.R. No, 39, dated 31-8-2001, under section 9 of Control of Narcotic Substances Act, 1997, Police Station Anti-Narcotics Force, Kohat. Under the impugned judgment, the learned Judge, Special Court (C.N.S.) N.-W.F.P., Peshawar at Kohat camp, convicted the appellant under section 9(c) of the Act (ibid) and sentenced him to life imprisonment and fine of Rs,1,00,000 or in default thereof to suffer S.I. For six months. The benefit of section 382-B, Cr.P.C. Was however, accorded to the appellant.

2. Case of the prosecution in brief is, that Asmatullah (P.W.2), who was then posted as Inspector Police Station, Anti-Narcotics Force, Kohat on 31-8-2001, along with the officials of A.N.F. Had laid Naka Bandi at Gulshan Abad Chowk Kohat, when in the meanwhile at 7-00 a.m., a Flying Coach bearing Registration No, E-4652 Peshawar, coming from Dara Adam Khel side, was stopped for checking. A passenger, sitting in the vehicle behind the driver's seat, was found in possession of two bundles of `Kashkol', lying in his feet. The search of the `Kashkol' led to recovery of Charas, weighing 18 kilograms. A meagre quantity was separated out of the seized property and sent to the office of Chemical Examiner, Punjab for opinion and report. The remaining was sealed in parcels. The accused was formally arrested and a case was registered against him.

3. The accused was served with copies under section 265(c), Cr.P.C. On 22-4-2002 and thereafter on 7-5-2002, he was formally charged, to which he did not plead guilty and claimed trial. He expressed his willingness to confess his guilt. Vide judgment, dated 16-7-2002, the accused was convicted under section 9(c) of the Narcotic Substances Act, 1997, and sentenced to suffer life imprisonment and a fine of Rs,5,00,000 or in default thereof to undergo further one year's S.I. On the ground of his 'plead guilty'. Feeling aggrieved, the appellant preferred an appeal before this Court, which was accepted vide judgment, dated 10-9-2003. The judgment dated 16-7-2002 was set aside and case was remanded back to the trial Court with direction to decide the same on merits.

4. After remand, the prosecution in order to prove its case produced five witnesses in all. The appellant in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been charged falsely. At the conclusion of trial, the appellant having been found guilty, was convicted and sentenced as mentioned above.

5. Mr. Noor Alam Khan, Advocate for the appellant at the very outset submitted that the appellant has remained unrepresented throughout the proceedings and, as such, the impugned judgment is liable to be set aside and case is fit for remand. When attention of Mr. Muhammad Khalid Khan, Advocate for the State, was drawn to this aspect of the matter, he had no plausible reply to make and conceded that no legal aid was provided to the appellant. However, the learned counsel contended that the appeal was hopelessly time-barred and merits dismissal on this score alone.

The submission of the learned State Counsel is not tenable. Having regard to facts and circumstances of the case, we deem it appropriate to accept application of the appellant and condone the delay.

6. A perusal of the order sheets of the trial Court would reveal that the accused remained unrepresented throughout the proceedings and was prejudiced in his defence. Only on one date i,e, 27-5-2002, attendance of the counsel for the accused has been marked but there is no power of attorney of the counsel on the file.

7. Under section 340, Cr.P.C. An accused has a statutory right to be defended by a counsel. The statutory right of an accused, particularly in a case entailing capital punishment, cannot be abridged by appointment of the counsel a day or two before the trial. Where it is discovered on the date fixed for the trial that the accused is without counsel, postponement of the trial becomes necessary. The section implies that the accused shall have a reasonable opportunity, if in custody, of getting into communication with his pleader and preparing for his defence. Full opportunity should be given to the under-trial prisoner to consult his legal advisors and all reasonable facilities should be afforded to him for the conduct of his defence.

8. In the result and for the foregoing reasons, we are constrained to accept the appeal, set aside the impugned judgment of conviction and remand the case back to the trial Court, with the direction to decide the same afresh after giving a fair chance to the appellant to engage counsel.

In case the appellant is not in a position to arrange counsel due to financial constraints, same shall be arranged at State expenses. The trial shall be concluded as expeditiously as possible not exceeding six months. Office is directed to remit the record of the case to the Court concerned immediately.