1990 P Cr (PLP)

This is an application for transfer of the case captioned state v. Muhammad Asian, from then Court of Ch. Anwar Ali, Sessions Judge, Okara to some other Court of competent jurisdiction.

2. I have heard the learned counsel for the petitioner and the State and perused the report submitted by the learned Sessions Judge as well as the other material available on the file of the present petition. There is nothing to doubt the integrity of the learned Judge. He appears to have acted with an anxiety to proceed with the trial because the witnesses were in attendance. The accused/petitioner had received copies of the statements of witnesses on 13-5 1989 and it was for him to engage a counsel well before 8-7-1989, the date fixed for recording of the evidence. The report of the learned Sessions Judge shows that the petitioner had engaged Rana Mushtaq Ahmad, Advocate, but falsely stated in the Court that he wanted time to engage some counsel. After the appointment of defence counsel at the State expense, Rana Mushtaq Ahmad, Advocate, appeared and took part in the proceedings as a defence counsel. No affidavit has been filed on behalf of Rana Mushtaq Ahmad, Advocate, to the effect that he was not engaged by the petitioner to defend him. The Court showed indulgence to the petitioner when his learned counsel prayed for time for cross-examining P.Ws. Nos. 6 to 8, the three eye-witnesses and adjourned the case to 10-7-1989. On that date, the petitioner's counsel absented himself and Rao Jalal-ud-Din, Advocate, was appointed at the State expense to defend the petitioner.

3. However, there is considerable force in the submission made by the learned counsel for the petitioner that on the adjourned date, Rao Jalai-ud-Din, Advocate, appointed at the State expense, was hardly prepared to cross-examine the witnesses. He had entered the Court-room with the hope that the accused/petitioner would be defended by the learned counsel appointed by him. He was suddenly called upon to cross-examine the witnesses and being taken by surprise could hardly do justice in the matter of cross-examination of the eye witnesses and defence of the petitioner. Needless to emphasize that cross examination of the eye-witnesses by the defence counsel requires considerable thinking and rethinking in consultation with the accused person himself. An Advocate, however competent he may be, cannot properly cross-examine the eye witnesses, particularly in a murder case, if called upon to do so all of a sudden. In Khadim v. The Crown P L D 1954 Lah. 69 a similar question was considered by a Division Bench of this Court. It was held as under:-- .when the accused is brought for trial, Sessions Judge, who finding that it is necessary to appoint counsel at Government expense for the prisoner, nominates a counsel merely to stand and watch the trial without giving him an opportunity to study the necessary documents and think over the case, makes a farce of the rule which entitles a prisoner charged with a capital offence to free legal assistance. It is true that where it is discovered on the date fixed for the trial that the accused is without counsel postponement of the trial becomes necessary, causing delay and expense. But the rule is intended to be observed and, if such document becomes necessary, it must be granted irrespective of all considerations of expense or delay, unless the case is perfectly simple and the fudge is conscientiously of the view that a few hours' time would be sufficient to enable counsel to take instructions from the prisoner and study the necessary documents in order satisfactorily to prepare himself for the defence of the prisoner. The Court was pleased to hold that Khadim appellant did not have the kind of assistance contemplated in Rule 1, Chapter 24-C of High Court Rules and Orders Vol.

111. Hence the conviction and sentence was set aside and retrial ordered by the Court. In Baisakur Ghara v. The State 1971 P 'Cr. L J 1047, the case was remanded by the Court for retrial because the defence lawyer engaged by the State to defend the accused was afforded only 2-1/ 2 hours to prepare the case. While refusing to confirm the sentence of death and allowing appeal, the Court was pleased to hold as under:

" We are, therefore, of opinion that the defence lawyer could not do proper justice in the matter for want of time and there has been a miscarriage of justice, in tire Case and the case should go back to the Court of Session for retrial of the accused after giving him proper opportunity to defend himself and sufficient time to the defence Advocate to take proper defence, on behalf of the condemned prisoner. The Court was further pleased to observe as under:-- ..It is unfortunate that the accused has been given extreme penalty of law without affording proper opportunity to defend himself." In another reported case captioned Yahya Bakhtiar, Advocate v. The State P L D 1983 SC 291, the Supreme Court was pleased to emphasize that a defence counsel appointed by the Court on the same day (in the absence of the accused) ought to be given tine to prepare the case after getting proper instructions from the accused. It was held as under: - "Another illegality committed was that the trial Court did not give the counsel, so appointed by it, time to prepare the case and seek instructions from the appellant, because the Court had asked him to conduct the cross-examination of Manzoor Hussain (P.W.23) the same day of his appointment and had proceeded with further recording of evidence from the next day." The Court was further pleased to hold that the evidence of P.Ws. 23 to 31 (who were cross-examined by the counsel appointed by the Tribunal) was inadmissible against the appellant. In the present case, as stated abovc, the learned defence counsel appointed at the state expense was suddenly called upon to cross-examine the witnesses in the absence of the other counsel appointed by the petitioner. This was sufficient to arouse reasonable apprehension in the mind of a layman like the petitioner that he would not receive unbiased justice from the Court of the learned Sessions judge. It is the cardinal principle of administration of criminal justice that justice should not only be done but should be seen to have been done. In transfer matters, it is not necessary to prove the real bias in the mind of the Judge. The words and actions of the Judge, even if susceptible of explanation and traceable to B superior sense of duty, when causing reasonable apprehension in the mind of an accused that he might not have an impartial trial, then interests of justice require transfer of the case.

4. To justify his action, the learned Sessions Judge has referred to the High Court Rules and Orders Vol. III Chapter 24-B, I Part `B' as well as D.O. letter No. 659/RHC dated 22-10-1978, letter No. 11389/RHC/MIT/A.C.43/80, dated 9-12-1980 and latest letter No. 898/RHC/MIT, dated 16th August, 1984. Out of these letters the first letter dated 22-10-1978 pertains to grant of adjournment in Sessions cases on account of absence of the prosecution witnesses. It was directed that no Sessions trial shall be adjourned merely on account of absence of the prosecution witnesses. The letter dated 9-12-1980 is merely in the nature of a reminder to follow the directions contained in the letter dated 22-10-1978. The last letter dated 16-8-1984 is relevant in the case and is reproduced below:-- .. .I am directed to inform you that the Honourable Chief justice has been pleased to direct that all the District and Sessions Judges/Additional District and Sessions Judges should be reminded to strictly follow the instructions contained in Rule 1 Part `B' Chapter 24-B, Volume 3 of the High Court Rules and Orders and D.O. No 659/RHC, dated 22-10-1978 and No.11389/RHC/MIT/A.C.43/80 dated 9-12-1980. Their Lordships have further directed that once the trial of a murder case starts, it shall proceed day to day and in no case, it shall be adjourned on account of the absence of a counsel. In case a counsel is not available, his junior shall appear in the Court to conduct the case or the party shall engage a new counsel. No adjournment is to be granted to a counsel in a murder case. The above letters are meant to discourage unnecessary adjournments and to secure expeditious disposal of the murder trials. The High Court Rules and Orders and the letters referred to above have to be read and applied in the light of the judgments of the superior Courts. The last letter also refers to engagement of a nev4 counsel. Where a new counsel is appointed by the party or one is appointed by the Court at the State expense, the object is to provide a proper opportunity of defence to the accused persons. The said object can be achieved only if sufficient time is allowed to the defence counsel to prepare the case in consultation with the accused person and then cross-examine the witnesses. It n may also be mentioned that every practising Advocate does not have a junior, working in his chamber The letter, dated 16-8-1984, primarily aims at discouraging the defence counsel, having junior lawyers with them, from obtaining adjourments in murder cases. It is also intended to encourage training of junior Advocates. Hence, if a counsel is himself a junior Advocate or has no junior working with him, the Court cannot insist that the counsel should send some junior lawyer to conduct the trial. The object of expeditious disposal of cases cannot be allowed to be carried to the extent of denial of a fair opportunity of defence to an accused person.

5. For the foregoing reasons, I accept this application and transfer Sessions Case No. 61 of 1989 captioned: The State v. Muhammad Aslam from the Court o the learned Sessions Judge, Okara to the Court of Mian Abdul Latif, Additional Sessions Judge, Okara. The transferee Court shall resummon the witnesses (who were cross-examined on 10-7-1989) for the purpose of cross-examination afresh after allowing a reasonable opportunity to the learned defence counsel (appointed by the petitioner or the learned counsel appointed at the State expense) for the said purpose and decide the case in accordance with the law. N.H.Q./M-1603/L Application accepted.