1994 P Cr (PLP)

Laws Cited

Representation

• Mian Abbas Ahmad for Petitioners.
• 2. It is alleged in the petition that the petitioners and others were formally charge-sheeted and the case was fixed for prosecution evidence on 16-1-1993 when the petitioners moved an application for adjournment of the ground that they had engaged Mr. Shah Ahmad Khan Baluch, Advocate from Lahore as the defence counsel and he was not in a position to appear v the trial Court on that date on account of his pre-occupation before the Honourable Supreme Court of Pakistan. According to the petitioners, learner Additional Sessions Judge recorded the statements of two witnesses, namely Muhammad Yar, A.S.I. and Muhammad Younas and that he also recorded examination-in-chief of Dr. Muhammad Azam. On an objection, the learner trial Court observed that the evidence of P.W.1 and P.W.2 was of forma nature and the petitioners were not likely to be prejudiced. Learned Additional Sessions Judge, however, adjourned the case to 27-1-1993 and burdened the petitioners with costs of Rs.700 to defray the expenses of the witnesses who were in attendance. It is further alleged in the petition that on 27-1-1993 learned counsel for the petitioners submitted before the trial Court that of account of the attitude shown by the learned trial Court on the last date o hearing and also on account of curiosity shown by the complainant before the learned Sessions Judge on 29-10-1992, the petitioners, who were facing capita charge had lost their confidence in the Court, therefore, the proceedings be adjourned to enable them to move a proper application before Honourable High Court. The learned Additional Sessions Judge, once again burdened the petitioners of the payment of costs of Rs.1,500 to be paid as expenses to the witnesses and adjourned the case to 18-2-1992". Grievance made by the petitioners in this petition is that the learned trial Judge was anxious to conclude the trial within the shortest possible time and they were, therefore not afforded reasonable opportunity to defend their case.
• 3. Learned counsel for the petitioners has vehemently contended that an accused person has a right to be defended by a counsel of his choice and therefore, when the petitioners sought adjournment on the ground that they had engaged a new counsel who was busy before the Supreme Court and was thus unable to appear in his Court, the learned Additional Sessions Judge should have adjourned the case without burdening the petitioners with the costs of adjournment. Similarly, on the adjourned date when the petitioner: informed the learned Judge that they intended to move the High Court fog transfer of the case, he should have stayed the proceedings and adjourned the case without imposing the costs. According to the learned counsel, the orders imposing costs on the petitioners for granting adjournment have given them a cause to apprehend that they would not get a fair trial from the learned Additional Sessions Judge. There can be no cavil with the proposition that the petitioners have a right to be defended by a counsel of their choice but this right has not been denied to them. Order of the learned Additional Sessions Judge, dated 16-1-1993 (copy Annexure "E") shows that the petitioners and their co-accused were represented by Hafiz Muhammad Ishaq, Advocate. The learned Judge recorded the statement of two P.Ws. viz. Muhammad Yar, A.S.I./Moharrir, P.W.1 and Muhammad Younas, P.W.2 and after the examination-in-chief of the third witness namely Dr. Muhammad Azam was recorded, petitioners, filed an application far adjournment alongwith Wakalat Nama of Mr. Shah Ahmad Khan Baluch, Advocate and sought adjournment on the ground that their counsel from Lahore would conduct their case. The learned trial Judge immediately adjourned the case obviously to enable the petitioners to be defended by their new counsel. Similarly, when the petitioners made an application on the next date of hearing stating that they wanted to move the High Court for transfer of their case, the learned Additional Sessions Judge readily adjourned the case for about three weeks "to allow them to avail of the legal remedy". In the circumstances, petitioners cannot make any justifiable grievance that they were not afforded reasonable opportunity to defend themselves or that the learned Additional Sessions Judge wanted to conclude the trial hurriedly.
• 4. I also find no force in the contention of the learned counsel based on the petitioner's grievance regarding the imposition of costs of adjournment. It. is manifest from the copy of "Wakalat Nama" (Annexure "C" with this petition) that the petitioners engaged Mr. Shah Ahmad Khan Baluch, Advocate as their counsel only on 16-1-1993 which was the date fixed for evidence and they moved the application for adjournment (Annexure "B") during the course of evidence stating that their counsel was busy before the Supreme Court and was thus unable to appear in their case on that date. It is noted in the order of the learned Additional Sessions Judge, dated 16-1-1993 and it is not denied by the learned counsel that as many as six P.Ws. were in attendance on that date whose evidence could not be recorded on account of the request for adjournment made by the petitioners. On the adjourned date also i.e. 27-1-1993, eight witnesses were present but their evidence could not be recorded owing to the postponement of the case at the request of the petitioners as aforenoted. Learned Additional Sessions Judge was, therefore, perfectly justified in burdening the petitioners with the costs of adjournment so as to defray the expenses of the witnesses and the parties. Needless to observe that the Code of Criminal Procedure empowers the Criminal Courts to order an accused if he asks for adjournment, to pay costs of such adjournment by way of compensation. No legitimate exception can, therefore, be taken to the orders complained of and in any case, the orders in question cannot be said to disclose any bias in the mind of the learned Additional Sessions Judge. Law is fairly well-settled that passing of any such order, even if it be illegal, erroneous or improper, does not per se disclose any prejudice or bias in the mind of the Court passing the order and as such it has never been considered as a valid ground for the transfer of a case. To justify the transfer of the case, something, more than a mere wrong order is required so as to create a reasonable apprehension in the mind of the party concerned that he would not get a fair or impartial trial. Refer Ragunandan Prasad v. Ramadhin Singh A I :t 1918 Pat. 656, Ishar Singh and others v. Shama Dusadh and others A I R 1937 Pat. 131 and Muhammad Hussain v. The State P L D 1973 B.J. 10. Learned counsel has not been able to point out anything substantive from the record which could possibly have raised the reasonable apprehension in the mind of the petitioners that they would not be fairly dealt with in their trial. No case is, therefore, made out for transfer of the case.

Headnotes / Summary

Judgment & Decree