1984 P Cr (PLP)

Niaz Ahmad, petitioner, had been challaned in a murder case by Shah Kot Police of District Sahiwal. He was arraigned before Sessions Judge, Sahiwal, on 26th June, 1983 to face his trial, on which date the charge sheet was framed against him to which he pleaded not guilty and claimed to be tried. The trial Court then proceeded to record the evidence. During the recording of statement of P. W. 5 Fazal Din, Suleman father of the petitioner put in an application praying that since the defence counsel Malik Shamim Riaz Langrial, Advocate, had suddenly fallen ill, the case be adjourned for a couple of days, whereupon the learned Sessions Judge adjourned the case to the following morning i.e., 27th June, 1983. On that date the petitioner moved another application for adjournment because his counsel, Sheikh Muhammad Shafi, Advocate, was busy before Additional Sessions Judge, Vehari, in connection with a murder case. This application was signed by the said counsel also, but the learned Sessions Judge returned that application and proceeded to record all the remaining evidence, the same day, by appointing a counsel at State expense for defending the petitioner. At this, the petitioner moved a transfer application expressing that his confidence in the Court had been shakers. The learned trial Court rejected the application by his order of even date saying that since the prosecution evidence had concluded and the case has been fixed for tomorrow for recording accused's (petitioner) statement, therefore, he was not competent to transfer the case, however, the petitioner might approach the High Court in that regard. Being aggrieved, the petitioner approached this Court through the instant writ petition. At the outset, the learned counsel for the petitioner submitted that this, writ petition may be converted into a petition under section 439 read with section 561-A, Cr. P. C. The request was granted.

2. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate-General. On behalf of the petitioner it has been vehemently argued that he was facing trial on murder charge punish able with extreme penalty, therefore, the learned Sessions Judge should have afforded maximum reasonable opportunity to him to be defended by a counsel of his choice. He maintained that it was neither a case where the petitioner being pauper was unable to engage his own counsel nor was it found by the learned trial Court that the petitioner had sought delibe rate adjournment with a motive to delay the trial. He pointed out that the learned trial Court not only acted with undue haste in recording the prosecution evidence in the absence of petitioner's own counsel; rather the Advocate appointed at State expense on 27th June, 1983 to defend him was not given sufficient time to prepare the case in a diligent and proper manner. He relied on Khadim Hussain v. State (P L D 1954 Lah. 69) and Muhammad Sharif v. State (P L D 1973 Lah. 365). Learned Assistant Advocate-General frankly and very rightly conceded the objection and pointed out that the instructions laid down in rule 2 of Chapter 24, Part C of High Court Rules and Orders, Volume III. have been violated in conduct of this case and, therefore, be found it difficult to defend the procedure accepted by the learned trial Court in the case.

3. Record shows that on the first day of the trial i.e., 26th June. 1983 evidence of four formal witnesses was completed and the examination- in-chief of one eye-witness bad been recorded in the absence of the defence counsel who reportedly had suddenly fallen ill. On the following day, the petitioner's father engaged another counsel who sent a request for adjournment as he was already busy before Additional Sessions Judge, Vehari. Ignoring the request for adjournment the learned Sessions Judge proceeded with the case by appointing a counsel at State expense and recorded the total prosecution evidence, the same day. It cannot be expected from a lawyer of whatever high calibre he may be to prepare the defence in a murder case within few hours particularly when the material evidence was to be recorded. the same day. . Under section 340, Cr. P. C. an accused has got a statutory right to be defended by a counsel. The High Court Rules quoted above enjoin that in case a counsel has to be appointed on state expense he should be appointed "in time to enable him to study necessary documents". A Division Bench of this Court in Muhammad Sharif's case observed that in a case entailing capital punishment the term "in time" would mean "a week's time" to be allowed to the counsel concerned and this statutory right cannot be abridged by appointment of counsel a day or two before the trial. Similar view was expressed in an earlier case, Khadim Hussain's case. 1n that case, the learned Chief Justice Muhammad Munir (as he then wall) who delivered the main judgment made the following significant observations :- "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 adjournment becomes necessary, it must be granted irrespective of all considerations of expense and delay, unless the case is perfectly simple and the Judge is conscien tiously 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. Of course, counsel who accepts a dock-brief and for fee paid by the State undertakes to defend a prisoner without trying to know anything about the case offences against the traditions of his profession."

4. In view of the above authorities, I find that the learned Sessions Judge had acted with undue haste in clear violation of the High Court Rules and Orders, Volume 111, and the principle enunciated in the above quoted authorities. May be that he was prompted to act in this manner to dispose of the case at the earliest but "speedy disposal" in violation of legal provisions and at the cost of "justice" is unknown to judicial norms. Had the learned trial Court exercised a bit of restraint and adjourned the case for a week's time enabling the petitioner's counsel to appear then not only the parties would have been saved from undue expense and hardship rather this case would have concluded many months before.

5. For what has been stated above, I allow this petition, quash the proceedings taken in the case so far and direct that the case against the petitioner be tried afresh in accordance with law. '

6. Also, I feel that the petitioner's apprehension that he might not get fair trial in the Court of Sessions Judge, Sahiwal, is not altogether unfounded. It is well-known that justice should not only be done, it D should also appear to have been done. Therefore, I direct that this case shall not be heard by the Sessions Judge, rather he would 7:aake it over to any Additional Sessions Judge functioning in the district for trial. M. Y. H. Petition accepted.