Right to be defended by a counsel of own choice given by the Constitution, to the accused cannot be exercised at the State expense. He has to be satisfied with the counsel assigned by the Court. The condemned prisoner can object if not satisfied. No Vakalatnama is necessary for the counsel at State expense. It is not necessary for the counsel to interview the prisoner in jail to get instruction. (SC) 1975 SCMR 1. Hakim Khan.
Right to be defended by a pleader is a statutory right of the accused, particularly in a charge entailing capital punishment. Right cannot be abridged by appointment of a counsel a day or two before trial. One week's time, at least to be allowed in such cases for preparation. (See High Court Rules and Orders, Rule 2, Part. C, Chapter 24, Vol 3). Case remanded for retrial (DB) PLD 1973 Lah. 365 Muhammad Sharif. 1974 P Cr.L.J. 168.
Hearing of appellant or his counsel is necessary provided they appear in he Court otherwise the Court may decide the case after hearing the State Counsel. It is mandatory for the Court to summon record. PLJ 1997 SC 1820, Barkat Ullah.
Advocate General of the province is to represent The State in the Court regardless of the marking of the case for trial in the Special Court by Federal Ministry of Law. 1993 SCMR 585, State v. Sobharo.
Advocate General may be appointed as Public Prosecutor by Government (PC) PLD 1949 PC 21 Bhagwan Das v. King.
Advocate-General Punjab is a Public Prosecutor by virtue of his office vide gazette notification dated 3rd April, 1937. (PC) PLD 1949 PC 21 Bhagwan Das v. King.
Advocate General not a Public Prosecutor under Criminal Law Amendment Act (XXXIV of 1958). Appeal filed under section 417, Cr. PC. against the acquittal of a Central Government employee is not competent. 1973 P.Cr.L.J. 100 State V. S.A Sadiq.
Advocate General who is not a Public Prosecutor within the meaning of Section 492, Cr. P.C is not competent to present appeal from acquittal. Conviction of respondent in such an appeal held void for lack of jurisdiction. (FC) PLD 1955 FC 79 Kadir Bakhsh v. Crown.
Advocate-General may withdraw case tried by High Court. PLD 1956 Lah. 848 Ghulam Sarwar v. Niaz-Ali.
Advocate-General, a Standing Counsel or any other officer is disentitled to appear in a case, if he is himself an important witness in that case or has a personal interest therein. (DB) PLD 1950 Lah. 1 Khan of Mamdot's case.
Advocate-General inadvertently omitting to describe himself as "Public Prosecutor" though in fact he was notified as such. Omission does not vitiate appeal. (SC) PLD 1959 SC (Pak) 4 Nawab Khan.
Assistant Advocate General on behalf of State is not competent to file appeal from acquittal. Appointment of Public Prosecutor for the purpose of filing appeals u/S. 417 Cr.P.C. should be relatable to Sec. 492 Cr.P.C. Additional Advocate General could not delegate his authority to Assistant Advocate General. 1994 SCMR 749, State through Advocate General Sindh v. Hanif Ahmed etc.
State not a party. The case being at the complaint stage, the State was not concerned as a party and the latter's intervention could be thought to have an element of officiousness. The Advocate-General, West Pakistan appeared for the State before the High Court and it is recorded as having supported the petition for quashment. (SC) PLD 1967 SC 354 Raja Haq Nawaz v. Muhammad Afzal etc.
Duty of State Counsel is to bring all the relevant facts to the notice of the Court even though that might tend to mitigate the offence; and this duty cannot be shirked by the Crown Counsel on the ground that the burden of proving the exception rests on the accused. (SC) PLE 1955 FC 70 Rafiq.
Counsel at State expense. When counsel for the accused at State expense does not appear to be competent the duty of the Court is to put question to the witnesses to make the case clear. (DB) 43 Cr.L.J. (1942 Pat. 36 Dikson Mali etc.
Counsel at State expense. Routine orders like granting of adjournment etc. can be passed by the Sessions Court in the absence of the counsel for the accused, but an order causing serious prejudice to accused should be passed after providing him the services of an advocate at State expense, if he is unable to engage advocate and such exercise is to be made well within time to enable such advocate to study necessary documents and law points. 1992 MLD 287, Mohammad Iqbal etc.
Counsel at State expense for two accused who had contradictory defence. High Court remanded the case for retrial after providing one counsel to each accused. NLR 1984 Cr. 48. Abdul Aziz.
Counsel at State Expense: According to High Court Rules and Orders: Rule 2 Chapter 24 Volume II:
If accused is unrepresented and cannot afford to engage a counsel, Sessions Judge shall make arrangement to employ counsel at Government expense, and he may also appoint counsel, if the thinks fit, even when committing Magistrate has considered that accused has means enough to engage a counsel himself. Counsel in such cases should be appointed in time to enable him to study necessary documents which should be supplied free of cost." PLJ 1997 Cr.C. (Lah.) 237, Muhammad Hashim Raza.
PDSP does not come within the definition of counsel or advocate (DB) PLD 1972 Kar 1972 Kar. 261. Hassian Ali v. Chairman WAPDA etc.
PDSP is not a public prosecutor. Public Prosecutor alone can approach a Court for withdrawal of case under section 494, Cr. P.C (DB) PLD 1971 Lah. 574 Muhammad Hanif etc. v. District Magistrate. Bahawalpur.
Complainant's counsel. There is no provision for appearance of complainants advocate in appeal even in non-cognizable offence. But 345, Tarapore v. Emp.
Complainant's counsel is not debarred from pleading complainant's case. Objection that he should not be allowed right of audience rejected. High Court has always been liberal in allowing counsel engaged by parties to address Court, as object is to find truth and to do justice between the parties. NLR 1989 Cr. 525 Lt. Gen. (Retd) Fazale Haq = PLJ 1989 Cr. C. (Pesh.) 541.
Privately engaged counsel is to act under the Crown Counsel; because the Crown stands not necessarily for a conviction but for justice. AIR 1940 Sindh 220 (221) Ahmad Muhammad v. Emp.
Private Counsel to act under the supervision and control of Public Prosecutor. Word act means examination of witnesses and address to the Court. PLJ 1986 Cr. C. (Kar.) 426. Rustam Khan etc.
in appeal; Where the Crown is not before the Court and whether as complainant's counsel or as amicus curiae the Court considers it desirable to obtain the assistance of a counsel engaged by the complainant in placing the facts before the Court, it can so allow the counsel to appear. AIR 1942 Lah. 296 (298) (FB) Emperor V. Ghulam Muhammad. A private prosecutor as such has no right to be heard, but the Court may grant permission in any particular case. 1886 PR 29. Akbar.
given opportunity of being heard in a revision petition when High Court was moved by him for the purpose. PLD 1977 Kar. 235 Tariq Saeed etc. cannot be appointed as Special Public Prosecutor. PLJ 1974 Lah. 266 Zafarullah.
Private counsel for complainant under section 493, Cr.P.C. is to act as subordinate to Public Prosecutor, Word `Act' in section 493, Cr.P.C. is not distinct and different from word `Plead'. 1969 P.Cr.LJ 1058 Malik Asad Khan. PLD 1972 Lah. 182 Mansabdar.
Private case in Sessions Trial, the case is to be conducted by the complainant's counsel, and not by Public Prosecutor. PLJ 1981 Cr. C. (Kar.) 70 Mohammad. Shafi.
As an accused. It is improper for an accused who is a practising lawyer with a strong personal bias to conduct his own case. (DB) AIR 1943 Lah. 298 Emp. v. Ch. Muhammad Hassian. 45 Cr.L.J. 149 = 209 IC 468.
Himself a party. An advocate cannot appear as a counsel for party in a case in which he himself is a party. (DB) 43 Cr.L.J. 43 (Mad.) Re S. Supramanaya Sarma.
When advocate wants to appear as a witness in a case he must retire as a counsel in that case (FB) 44 Cr.L.J. 114 (Mad.) Re CS Vankatcharier.
As witness. The mere possibility of a advocate being summoned as a witness by either party is not enough to justify withdrawal from the case. 1972 P.Cr.L.J. 62 Fakhar-ud-Din etc.
Personal interest of a witness. When a counsel is a witness in a case or has a personal interest in it he is disentitled to appear in that case. (DB) PLD 1950 Lah. 1. Khan Iftikhar Hussain Khan.
Personal case. There is no objection to an advocate who is accused of a criminal offence or is a party in a Civil Court conducting his own defence or his own case. He is fully entitled to do so but he cannot appear at the trial as counsel for his co-accused. He cannot be in Court in the same matter in two capacities. AIR 1941 Mad. 808 Subramania Sarma.
Vakalatnama filed by pleader in trial Court; it holds good for such Courts in which the pleader is competent to appear and it is so mentioned in the Vakalatnama. 43 Cr.L.J. 173 Chhajju v. Emp. 197 Ind. Case 497.
Advocate can plead without Power of Attorney on filing in Court a Memo of appearance (DB) ILR 17 Lah. 456 Ramzan v. Gopaldas.
Plea of guilty made by counsel of accused on behalf of the accused in absence of the accused cannot bind the accused and make him liable to conviction and punishment. PLJ 1996 Cr. C (Lah) 812, Mushahid Hussain Syed.
Concession by a lawyer. No serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused (PC) 54 IA 96 Abdul Rehman v. King Emp.
Admissions by counsel of the accused are not binding on the accused in a criminal case. 1996 SCMR 1533, Abdul Khaliq.
Consent by Counsel. No consent by counsel whether for his own convenience or for the Court or his client can by itself create jurisdiction in a Court to commit irregularities. 30 Cr.L.J. 337 Sukhai Ahir v. Emp
Consent of Advocate of the accused cannot cure serious defect in the conduct of the trial. (PC) AIR 1927 PC 44 Abdur Rehman v. K.E.
Counsel of the accused not authorised by the accused not to press his appeal against conviction u/Ss. 148/149 PPC. It was an act without authority and as such not binding on the accused. Leave to appeal allowed. 1995 SCMR 858, Liaqat.
Brief of the other party can be accepted by an advocate after the termination of the proceedings which he was a counsel of the first party. Change of sides as such is not professional misconduct provided there are no confidential communications by one side which may be, made use of when the lawyer represents the opposite party. It is forbidden if the lawyer obtains his own discharge and acts for the opposite party. It is also forbidden if the lawyer accepts a retainer form the opposite party without first offering his services to his original client. (FB) ILR 27 (1946) Lah. 173 Re R.L. Annand Advocate.
Advocates are officers of the Court. PLD 1972 Kar. 341 Jalil v. M. Ishaq.
Advocate is an officer of the Court and his misconduct affects the trust of the litigants in legal proceedings. (FB) 47 Cr.L.J. 932 = 266 Ind. Cas. 388.
Change of counsel does not entitle the new counsel to re-examine a witness already examined u/S. 540, Cr. PC. NLR 1989 Cr. 29 (2) Sanwal V. Khadim Hussain.
Succeeding advocate should watch the name of preceding advocate in the cause list. Case dismissed in default unexceptionable. NLR 1981 Civil 362. Halim Ali etc. v. Dildar Muhammad.
Advocate threatened and insulted in the performance of his professional duties, held there is no contempt of the Court directly but there is contempt in as much as an officer of the Court such as an advocate appearing in his professional capacity was threatened and insulted while in the performance of his professional duties in that Court. Even if section 228, Penal Code is not applicable a contempt of Court is committed if the allegations are established. In such a case it is not strictly necessary even though it is desirable for the advocate to move the Court. (DB) 48 Cr.L.J. 757 (Lah.) Nand Lal Bahalla v. Kishori Lal.
Incompetence (or inaptitude) of the defence counsel or lack of vigilance of the Judge. When in appeal by the accused against his conviction and a reference under section 374 the High Court is apprised of the fact that valuable material which could or which have been put in evidence in favour of the accused was not put before the jury due to the inaptitude of the lawyers for the accused or to the apathy or lack of vigilance on the part of the judge, the High Court can make full use of those material before it for the purpose of doing justice. Accused acquitted. (DB) 45 Cr.L.J. 99 Emp. v. Lal Mia.
Advice to client who was accused in a case can be legitimately given by a counsel not to answer certain questions by Court 3 Cr.L.J. 134 Mr. A. v. Emp 6 PLR 671.
Privilege. There are limits to the advocates, privilege, especially where the person against whom the imputations are made is neither a party not a witness. If an advocate makes and imputation on the strength of instructions from his client and the instructions turn out to be untrue, it is the duty of the advocate to withdraw the imputation. AIR 1932 Bom. 490 = 33 Cr. 740 Tulsi Das v. Billimoria.
No defamation It is not defamation for a pleader to put, a question in cross-examination to a witness or the purpose of impeaching his credit, even if the assumption of facts turns out to be not true, if it was done without malice, in the interest of his client and not for his own end, (1909) 36 Cal. 375 Upendra Nath Bagchi.
Lahore High Court view. A counsel cannot claim an absolute privilege. A counsel who signs at pleading containing serious allegations lays himself open to prosecution for defamation. However, he cannot be successfully prosecuted unless it is proved that he acted in bad faith or maliciously. It must be presumed that the counsel acted honestly and without malice. If there are no materials except proof of the defamatory statement then no summons should be issued by the Magistrate. 46 Cr.L.J. 530 = AIR 1944 Lah. 97 Muhammad Taqi v. M.A Ghani.
Not absolute privilege. The immunity which an advocate or pleader enjoys in proceedings before law Courts for words uttered or written in the performance of his functions as an advocate is not in the nature of an absolute but qualified privilege and it is for the prosecution to prove absence of good faith. 49 Cr.L.J. 701 (All) L. Gendan Lal. V. Rex.
Obtaining signature on blank paper, by counsel for preparing plaint of his client is professional misconduct. (F B) 46 Cr.L.J. 556 Re. Pleader Bellary = 219 Ind Cas 275.
Embezzlement. A legal practitioner embezzling money of his client must be removed from the rolls altogether. (F B) 43 Cr.L.J. Lah. 63. In the matter of B., a pleader, Simla.
Advocate must inform the Court if unable to appear, otherwise he may be penalised for the discourtesy. (SC) 1971 SCMR 776 Saeed-ud-Din.
Advocate's non-appearance in a Court should not be viewed strictly when counsel is engaged in another Court. It should however be remembered that the counsel should not as a rule accept more engagements than what they are capable of fulfilling. If for any unforeseen reason it so happens that they are called upon to appear in two Courts, more or less simultaneously then even though a superior Court has preferential right to their services, they should, out of respect for the lower Court, take the precaution of taking its permission, so that the latter Court is not unduly inconvenienced or left with no word. (SC) PLD 1969 SC 270 Muhammad Haleem etc. v. Muhammad Naeem etc.
Counsel Senator cannot claim any privilege in his professional work because he is to attend the session of Senate. (SC) 1975 SCMR 179 Ghulam Sarwar v. Daya Ram 1975 SCMR 199.
Admission on a point of law by advocate in a previous case does not bind him PLJ 1980 SC 106. M. Yamin Qureshi v. Pakistan PLD 1980 SC. 22.
Counsel of appellant not appearing before Supreme Court, appeal treated as jail appeal and disposed of on merits. 1987 SCMR 1505 Jamiat Ullah.
Free legal aid in pauper cases, can only be given in cases punishable with death. In other cases counsel appearing for Advocate General should watch the interest of pauper convict. PLJ 1987 Cr. C. (Lah) 383. Muhammad Sharif.
"Miranda Rule."
(1) If a person is subjected to interrogation, officers must inform him in unequivocal terms that he has right to remain silent.
(2) There must be warning that anything the suspect says can be and will be used against him in a Court of law.
(3) Suspect has a right of counsel, even during investigation.
(4) If a person cannot afford a counsel he must be provided one even during investigation, by the State.
Above formulation is known as "Miranda Warning". 384 U.S. 436, (1966) Miranda v. Arizona, PLJ 1997 Cr.C. (Lah.) 237, Muhammad Hashim Raza.