' The only point for determination in this transfer application is whether the chain of adjournments granted by Mr. Shahzada Kabir Ahmad, Addl. Sessions Judge, Bahawalpur, constitute sufficient ground for transfer of the case from his Court to another Court of competent jurisdiction.
2. The facts, briefly stated are; that the applicant is complainant in a murder case titled "State v.
Khurshid and others" pending in the Court of Shahzada Kabir Ahmad, Addl. Sessions Judge, Bahawalpur. Since 2-4-1990, the case is being adjourned/postponed for variety of reasons given in chart which is as follows:-- Dates of hearing.Reasons for adjournment, to next date.
2-4-1990Evidence was present, but the defence counsel was busy in the Supreme Court 10-4-1990Evidence was present, but the stenographer of the Court was on leave.
18-4-1990Evidence was present, but, the defence counsel was not available.
15-5-1990-do-- 10-6-1990Evidence was present but the Presiding Officer was on tour.
20-6-1990Evidence was present, but the Presiding Officer was on leave.
14-7-1990-do-- 29-7-1990Evidence was present, but the learned defence counsel was busy in a Special Court.
9-9-1990Evidence was not present.
15-9-1990Evidence was present, but the Presiding Officer was on leave.
22-9-1990Evidence of two witnesses was recorded and as the learned defence counselwas busy elsewhere the case was adjourned.
23-9-1990Evidence was present but learned defence counsel was busy in the High Court.
4-10-1990Evidence was present, but the Presiding Officer was on leave.
15-10-1990Evidence was present but the learned defence counsel was not available.
23-10-1990The accused were not brought from jail.
11-11-1990Evidence was present, but the learned Presiding Officer was away for official purpose.
10-12-1990Evidence was present, but the learned Presiding Officer was on tour and case adjourned to 18-12-1990.
3. In the context of aforesaid circumstances, the learned Addl. Sessions Judge was asked to furnish his comments. He took up the stand in following words:-- "In Bahawalpur there are very few advocates who appear in murder cases and so we have to accommodate them as they have to appear in several other Courts including the august High Court?.
' On this Mr. A.R. Tayyib, Mr. Riaz-ud-Din Ahmad and Malik Farrukh Mahmood, Advocates, were called to assist the Court as amicus curiae. In pursuance of this call, these learned counsel entered appearance and assisted the Court with remarkable industry and labour.
4. The learned counsel for the applicant contended that the learned Additional Sessions Judge had been granting adjournments in a mechanical manner despite the fact that the evidence of the prosecution was present almost on each date of hearing. It was contended that these postponements were contrary to the provisions of Section 344 Cr.P.0 High Court Rules, Orders and Circulars. According to him these orders were without any merit and left impression in the mind of the applicant that the case will not be decided on merit by the trial Court.
5. Mr. Riaz-ud-Din Ahmad, Advocate, contended that the Sessions case was to be adjudicated with expedition. It was to be heard day to day so that it can be concluded without any loss of time. It was next contended that the Court had the power to grant adjournments/postponements in Session cases, provided the plea was built upon extraordinary reasons.
6. Malik Farrukh Mahmood, Advocate, appearing next, adopted the arguments of Mr. Riaz-ud-Din Ahmad, and submitted that Chapter 24, Part-B of Volume-III, of High Court. Rules and Orders dealt with the trial of murder cases. According to him the Sessions Judges and the Addl. Sessions Judges were enjoined to dispose of the Sessions cases without any delay. According to him, adjournment was to be granted on the basis of circumstances which were beyond the control of requesting party. It was further added that the Sessions Judges were required to fix the days for the purpose of trial of murder cases and then fix them on those days in order to avoid overlapping and postponements. He brought to the notice of the Court various circulars issued by this Court dated 20-2-1975, 22-3-1983 and 16-8-1984. It was asserted that by these circulars the Sessions Judges/Addl. Sessions Judges were given a pre-emptive direction to hold the trial of murder cases from day to day till it finishes and not to grant adjournment.
7. Mr. A.R. Tayyib; Advocate, learned counsel for the accused in the trial Court assisted the Court with remarkable lucidity and candour. He did not dispute the views of Mr. Riaz-Ud-Din Ahmad and Malik Farrukh Mahmood, Advocates. He contended that there was no cavil with the proposition that the murder cases are to be decided with speed in order to bring end to this important trial. He, however, submitted that the Court had the power under section 344 Cr.P.0 to grant adjournments/postponements in accordance with the circumstances of each case. According to him the murder trial was very important one. The neck of the accused was in danger and such an accused was entitled to be provided with fair opportunity to prove his innocence. He urged that no hard and fast rules for grant of adjournments can be laid down. In this respect, the trial Court was invested with the jurisdiction to grant or decline a request for adjournment/postponement of the case. The Court was required to keep balance between the theory of expeditious disposal and the need of doing complete justice while dealing with such requests. He asserted that undisputedly delayed justice was denied justice but hurried justice also amounted to crushing justice. He further added that the orders of adjournment granted by the trial Court were neither in excess of authority nor were without authority and were actuated by the requirement of doing justice to the accused who were being tried in a charge punishable with death penalty.
8. I have heard the zirgurnent.s of the learned counsel for the applicant, the submissions made `by M/s. Riaz-ud-Din Ahmad, Malik Farrukh Mahmood and A.R. Tayyib, Advocates. Before I proceed to examine the contentions of the parties, it will be useful to notice the relevant applicable law which is as follows:- ' Section 344, Cr.P.C,: ' If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time, as it considers reasonable, and may by a warrant remand the accused if in custody.
CHAPTER 24. PART-B TRIAL OF SESSIONS CASES: "(1) The Judges desire to emphasize the desirability of disposing of Sessions cases with greatest possible expedition and to secure this object the following method should be adopted.
(2) Sessions Judges should reserve for possible Sessions cases several days in each month........
(6) The High Court requires explanations to be furnished in monthly sessions statements of any cases pending over two months."
HIGH COURT CIRCULARS:
(1) Circular :No. 2185. GenI/XII.D.11 date: 20-2-75 issued by Member Inspection Team, Lahore High Court to all District & Sessions Judges/Addl. District & Sessions Judges, in Punjab; Subject: Delay in disposal of murder cases: ' It has come to the notice of the Chief Justice and Judges of this Court that the Sessions Judges and Additional Sessions Judges in the province now treat murder cases almost at par with civil matters and grant adjournments therein as a matter of course.
' I am directed to request you that except for very extraordinary reasons,. Adjournments should not be granted in murder cases and should. Always proceed to hear such cases from day to day.
(2) Circular No. 3933-CrI/V.H.18, dated 22-3-83 from the Registrar Lahore High Court,' to all the District & Sessions Judges, in the Punjab.
Subject: Adjournments in trial of murder cases: ' I am directed to say that it has been noticed that the Sessions/Additional Sessions Judges do not keep in view the provisions of the High Court Rules and Orders and the instructions issued by this Court for conducting trial of murder cases from day to day. They are very liberal in granting frequent adjournments and giving long dates. The Honourable Chief Justice and Judges have deprecated this practice and observed that this tendency on the part of the trial Judges in murder cases has to be curbed as it not only prolongs the agony of the accused in custody but also shakes the confidence of the litigants.
(3)I am, therefore, to impress upon you that in future the provisions of the Rules and Orders and the instructions of the High Court pertaining to the trial of murder cases should be complied with strictly.
(4)Circular letter No.898/RHC/MIT, from the Registrar Lahore High Court, to All the District & Sessions Judges in the Punjab, dated 16-8-1984.
' Subject: Disposal of Sessions Cases.
' I am directed to inform you that the Hon'ble 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 I, Part-B, Volume III of the High Court Rules and Orders and D.O. No. 659/RHC, dated 22-10-1980 and No. 1139/RHC/MIT/AC.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 to conduct the case or the party shall engage a new counsel. No adjournment is to be granted to a counsel in a murder trial."
9. It is crystal clear from the examination of Section 344 Cr.P.C. In conjunction with the High Court Rules, Orders and Circulars noted above, that Sessions trial once begins should be continued de die in diem until it finishes. This case is not to be adjourned/postponed except under very good/strong reasons. For this purpose a pre-emptory mechanism is provided by the High Court in Rules and Orders. The Sessions/Addl. Sessions Judges are enjoined to reserve days in a month for disposal of the murder cases in accordance with their numbers in their Courts respectively. They are then required to fix these cases on those days in order to avoid overlapping and the postponements of these cases. This procedure had been being communicated to the trial Courts of the Province from time to time. In order to bring home this principle, it has been frequently repeated that the murder cases are not being disposed of properly by the trial Courts and the action might be taken against them. This situation was noticed by the Supreme Court of Pakistan in Muhammad Ralique v. Muhammad Rafique and another (PLD 1983 SC 426). It will not be without advantage to quote the words of the Supreme Court, which are as follows:- ' It has been provided in Part-B, Chapter 24-B C-III, of the High Court Rules and Orders that the Sessions Judges should reserve several days in each month exclusively for Sessions trials and that he should fix the dates of each case and inform the relevant agency to ensure the attendance of the prosecution witnesses on that date. The trial of such cases 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 wintesses 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 in April, 1981, it has not yet been completed. It is such cases that are cited as examples of inadequacy 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 are not following the instructions issued by the High Court in its Rules and Orders with respect to trial of Sessions 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 inefficiency there shall be rapid and manifest improvement within a short time. This shall not only salvage the judicial image but also afford to litigants the much desired relief."
10. From the foregoing examination, I am quite clear that the learned Additional Sessions Judge has no power to grant adjournment in a murder case in a stereotype and mechanical manner. The murder trial is to proceed day to day and adjournment can only be granted on extremely good and extraordinary reasons.
11. Now the remaining question is whether the adjournment/postponement in a murder trial can be granted on account of non-availability of the learned counsel on account of his engagement somewhere else. This question is not free from difficulty. As a rule, adjournment should not be granted unless and until necessitated in the interest of justice. In Section 344, Cr.P.C. The emphasis has been placed on the words "necessary or advisable". The concerned Court is to decide the question of necessity or advisability of postponement in accordance with the circumstances of each case. It can hardly be disputed that the accused has a right to be represented by the counsel of his choice and has to be provided with an opportunity to defend him. Seen from this perspective, the Court is required to examine the request of a counsel from the principle of reasonableness. In Salag Ram v. Emperor (AIR 1973 Allahabad 171), the absence of counsel was not considered sufficient for the purpose of adjournment. In a Nagpur Case titled Bhanwarsingh v. Sukhramsingh (1940 Criminal Law Journal Vol.41, 585), it was observed that the Court was not obliged to pay attention to telegram by counsel for adjournment. In Noor Muhammad v. The State (PLD 1969 Lahore 1049), the counsel sent adjournment application through post and asked for date of his own choice. It was held that the counsel asked for too much indulgence. Such indulgence could not be claimed as a matter of right.
12. From the aforesaid discussion, it is clear that the Sessions Courts are not to postpone or adjourn the proceedings in a murder trial on ordinary pretexts and have to weigh the request of the learned counsel for adjournment on merit and in the context of a mandate contained in the High Court Rules, Orders and Circulars quoted above.
13. In the light of whatever has been stated above, I am clear that the following principles emerge for the trial of murder cases before Sessions/Addl. Sessions Judges:--
(i) that the Sessions/Addl. Sessions Judges, shall reserve days for the disposal of murder cases after taking into consideration the number of cases pending in their Courts and fix them on those days:
(ii) the Sessions/Addl. Sessions Judge, must hear the murder case from day to day till the case is finished;
(iii) the adjournments and postponements can only be granted within the framework of Section 344 read in conjunction with High Court Rules, Orders and Circulars; and
(iv) The Inspection Team appointed by the High Court should keep a vigilant eye on the murder trials and bring any deviation to the notice of my Lord Chief Justice, so that appropriate action be taken against offending authorities in accordance with the rule laid down by the Supreme Court in Muhammad Rafique's case.
14. Applying these principles to the facts of this case, I have no hesitation in coming to the conclusion that the postponements/adjournments granted by the learned Addl. Sessions Judge are without any merit. It is clear from the Chart that on 2-4-1990, 18-4-1990, 15-5-1990, 29-7-1990, 22-9-1990 and 23-9-1990 adjournment was granted on account of absence of the learned counsel on account of his engagement before other Courts. On 10-4-1990, the case was adjourned on account of absence of Stenographer of the Court. On 10-6-1990, the leased trial Court was on tour while on 26-9-1990, the learned Court was on leave. It is clear from these orders that neither days were reserved in compliance with the High Court Rules nor the cases were fixed on those reserved days. The case was being adjourned at random. These proceedings to my mind do not inspire/exude confidence. I, therefore, accept this application, withdraw this case from the Court of Shahzada Kabir Ahmad, Addl. Sessions Judge and transfer it to the Court of learned Sessions Judge, Bahawalpur who shall dispose of the case within two months of the receipt of this order.
Before parting with this order, I feel necessary to express gratitude to Riaz-ud-Din Ahmad, Malik Farrukh Mahmood and A.R. Tayyib, Advocate, who assisted the Court with remarkable industry and labour.
15. Copy of this order shall be sent to Member Inspection Team, Lahore High Court, Lahore and all the Sessions/Addl. Sessions Judges in the Province of Punjab.
Case transferred.