P L D 1983 Supreme Court 426 (PLP)

ASLAM RiAZ HUSSAIN, J.-This order shall dispose of two petitions namely Cr. P. 46/81 and Cr. P. 47/81 both filed by Muhammad Rafique son of Ali Gobar. Criminal Petition No. 46/81, is directed against the order of the learned Single Judge of the Lahore High Court, dated 23-12-1980 granting bail to Abdul Ghani and his son Muhammad Rafiq respondents. Criminal Petition No. 47J81 is directed against order of the same learned Judge of the High Court dated 20-1-1981, granting bail to Hamid Ali, respondent.

2. The facts giving rise to these petitions are, briefly, that the three respondents named above were sent up for trial, on a Murder Charge, to the Court of Sh. Bashir Ahmad, Sessions Judge, Kasur, but the trial was adjourned by the learned Sessions Judge each time it came up for, recording of evidence with the result that each time the prosecution witnesses had to return without being examined. Mahammad Rafique son of Ali Gohar complainant (petitioner before us), therefore, filed the above-mentioned two petitions for leave to appeal against the orders of the Lahore High Court granting them bail with a view to get the same cancelled.

3. When the petitions were fixed, on the 14th of April 1981, the learne counsel for the petitioners urged before us that the trial of the case was no proceeding because the accused-respondents were on bail and it was in thei interest to get the trial prolonged. He submitted that if their bail was cancelled, they would no longer seek adjournments and the trial would be completed without further delay. We noticed that the learned Sessions Judge had been giving unusually long dates. To satisfy ourselves we called the Reader of the A Sessions Judge's Court with the file of the case and after examining it, asked him to convey to the learned Sessions Judge that he should conclude the trial without any further delay. We did not cancel the respondents' bail, but asked the complainant/petitioner's counsel to press the application again after 3 months in case the trial is not concluded by then. It was assumed that the learned Sessions Judge shall fix the case, examine witnesses from day to day and conculde the trial within a period of 2/3 days of its fixation.

4. Raja Muhammad Anwar, counsel for the petitioner has again approached this Court to submit that even after the passage of 2 years trial of the case has not yet been concluded despite the direction of this Court. He submitted that the case has been fixed by the learned Sessions Judge on numerous dates and recording the statements of the prosecution witnesses and other proceedings. The statements of the accused were recorded on 19-12-1981. But the judgment was not delivered because the learned Sessions Judge took up the connected complaint case for trial which has not yet been completed despite the fact that it has been fixed for hearing on 50 different dates.

5. We asked Raja Muhammad Anwar, Advocate, to produce copies of the orders so as to ascertain correctness of his assertion. We do not wish to burden this order by giving details of what was done on each date of hearing and think it sufficient to record the case (State v. Hamid All, etc.) that was taken up and adjourned on the following dates : 19-4-1981 2-12-1981 1-6-1981 5-12-1981 1-7-1981 ~. 6-12-1981 22-8-1981 8-12-1981 1-10-1981 9-12-1981 24-11-1981 12 12-1981 25-11-1981 14-12-1981 ,;. 28-11-1981 3,. 16-12-1981 29-11-1981 . ~: ~: 17-12-1981 30-11-1981 19-12-1981 On the last mentioned date the statements of the accused were concluded and the case was adjourned to the next date i. e. 20-12-1981 with the following order : "The connected complaint case to be tried to come up on 20-12-1981 for further proceedings alongwith a connected complaint case." This was done so that the evidence in the `police case' as well as `Complaint case' can be considered together.

6. We notice that the learned Sessions Judge did not follow the pro cedure recorded by this Court in Nur Elahi v. The State etc. (1) for the trial~e of the cross-cases, one based on the police report and the other on a privat /e complaint. However, the Complaint Case was fixed on the following dates, for recording evidence of the complainant party which has, unfortunately, not yet been completed :- 20-12-1981 21-12-1981 22-12-1981 2-1-1982 6-1-1982 7-1-1982 10-1-1982 11-1-1982 12-1-1982 13-1-1982 16-1-1982 18-1-1982 - 19-1-1982. 23-1-1982 30-1-1982 31-1-1982 10-2-1982 11-4-1982 , 27-4-1'982 4-5-1982 19-5-1982 19-6-1982 23-6-1982 29-6-1982 6-7-1982 14-7-1982 21-8-1982 22-8-1982 24-8-1982 28-8-1982 4-9-1982 5-9-1982 7-9-1982 8-9-1982 9-9-1982 13-9-1982 14-9-1982 15-9-1982 18-9-1982 2.7-9-1982

7. Sh. Bashir Ahmad, Sessions Judge was transferred to Vehari on 5-10-1982 and Mian Muhammad Zarif was appointed in his place. He was seized of the trial for some time and fixed the case for recording of evidence on the following dates without any progress :- 16-10-1982 9-1-1983 24-10-1982 29-1-1983 7-11-1982 13-2-1983 22-11-1982 24-5-1983 (1) PLD1966SC708 Thereafter he left for Islamabad to attend the 'Qazi Course' and the trial was adjourned to 5-3-1983, by his reader in his absence.

8. Raja Muhammad Anwar, stated that he did not know when the learned trial Judge was to return but informed us that all the cases on his file have been kept pending to await his return and for this reason the trial of the present case has not been entrusted for completion to any other learned Judge. He submitted that one course open to the High Court was to appoint Sh. Bashir Ahmad as Sessions Judge at K asur for a short time so that he may complete this trial. But this has not been done. He cited before us the Rules and Orders of the High Court relating to the trial of the Session cases. It has been provided in Part-B, Chap. 24-B, V. III of the High Court Rules and Orders that the Sessions Judge should reserveseveral days in each month exclusively for Session trials and that he should fix the dates of each case and inform the relevant agency to ensure the c attendance of the prosecution witnesses on that date. The trial of such case is normally to proceed from day to day. Rule 6 of the aforementioned rules provided as follows : "

6. The High Court requires explanations to be furnished in monthly Sessions statements of any cases pending over two months." (The underlining is ours). It is manifest from the above rules that Sessions trials should be given the seriousness they deserve. The trial Courts should fix such cases on specified days in the week and not crowd their cause lists for those days. The cases fixed must invariably be taken up and adjournments must be rare. It must be realised by all concerned that unmerited adjournments not only lead to difficulties in bringing together the witnesses again but also make every other agency concerned with the trial to slacken its effort to help expedite the trial. A Sessions trial once started should continue from day to day until it is complete. Three months was a long time and in asking the complainant to press his application after 3 months, this Court had every expectation that the trial would end well within that time. It is, therefore, a matter of dismay that the trial is yet to start.

9. We regret to note that the manner in which this trial was conducted by the learned Sessions Judge and the fact that although it was commenced D in April, 1981, it has not yet been completed, It is such cases that are cited as examples of indequacy of the present Judicial System and provide an opportunity for the criticism that it has become unworkable. The fact, however, is that the Sessions Judges or Additional Sessions Judges are not following the instructions issued by the High Court in its Rules and Orders with respect to trial of Session cases and, in some cases, are actually flouting them. A sense of complacency appears to be prevailing in the subordinate judicial officers which is probably rested in the belief that no action shall ever be taken against any of them. This impression can, however, be removed and the situation rectified quickly by a determined exercise of its supervisory jurisdiction by the High Courts. If a few incompetent officers are proceeded against for ineffciency, there shall be rapid and manifest improvement within a short time. This shall not only salvage the judicial image but also afford to litigants thf much desired relief.

10. Considering the delay that has already taken place we deem it proper that the case in question should be fixed before a Court competent to conduct the trial which should be required by the High Court to proceed with it day to day and complete it without any further loss of time. '[Here in italics].

11. As for the prayer for the cancellation of respondents' bail, in the two petitions we reject the same the Same, in view of the fact that they are notlE in any way responsible for the delay in the completion of the trial. M. z. M. Appeal rejected.