These are four connected transfer applications for transfer of Sessions cases from the file of learned Sessions Judge, Sanghar to any other Court. Since they involve common questions of law and fact they would be disposed of together by this order.
2. In case of Transfer Application No. 21/78, one Mebrab is undergoing trial in a murder case in the Court of Session, Sanghar. The defence counsel Mr. Affah Dino requested the Court for adjournment on the ground that he was not well on the preceding night and he had not been able to prepare the case. The. Adjournment was refused whereupon Mr. Allah Dino filed his statement withdrawing his vakalatnama. On the adjourned date Mr. Ghulam Rasool Junior partner of Mr. Allah Dino appeared but he was advised to file a fresh vakalatnama in his individual capacity. This was done but he was not allowed to appear and represent the accused on the ground that he was a member of the firm of Messrs Allah Dino and the power once withdrawn could not be filed again.
The learned Sessions Judge then proceeded with the case ; that the accused was not allowed to be represented by any defence counsel and the examination-in-chief of an important witness injured Mst. Mariam was recorded. The case was then adjourned to another date and a pauper Advocate was appointed on behalf of the accused., On 11-5-1978 the accused/applicant moved adjournment application on the ground that he wanted to apply for transfer but this application was rejected and the prosecution witnesses were examined. An application was then made by the accused/applicant for copies but this was refused on the ground that the request for copies did not contain the words "on payment of costs". The application for copies was, therefore, rejected and the accused was to be informed through the Jailer, Thus the murder trial had been proceeded with without there being any counsel to represent the accused in custody and the witnesses were examined. The accused was denied the copies required by him.
3. In the next Transfer Application No. 24/78 the facts alleged are that the counsel for the accused was not allowed any convenience of date but the case was proceeded with to the absence of the counsel and all the prosecution witnesses were examined. The statement of accused was also recorded and the arguments of the District Public Prosecutor were heard. The case was then fixed for judgment. In Transfer Application No. 30/78 in another murder case the request of Mr. Allah Dino defence counsel for convenience of date during vacation was turned down and the case was proceeded with in the absence of the counsel on the ground that the accused had ample time to engage another counsel. The application for recall of witnesses for cross-examination under section 540, Cr. P. C. Filed subsequently is said to have been thrown away.
4. Lastly in Cr. Transfer Application No. 32/78 a bail application moved on behalf of the accused in the murder case was rejected by the High Court. The accused were arrested on 28-7-1973 and the bail application was moved on the ground of delay of 31 years. While rejecting bail application directions were issued to the Sessions Judge, Sanghar to proceed with the case without further delay and the accused applicants were permitted to move the Court if no progress was made during the next six months of the trial. The bail application was again moved after about 13 months on the ground that during all that period only one corpse bearer. Had been examined. The diary of the case showed that the hearings were adjourned for two or three months each time even at the request of the private counsel for the complainant, though the prosecution witnesses were in attendance. The bail was granted because the case could not be concluded by the trial Court.
Thereafter the trial Court showed annoyance with the applicants and their Advocate and by attitude created apprehension in the mind of the applicants that they could not get a fair trial in that Court.
5. The refusal to grant application for copies was held to be a sufficient ground for transfer in 1969 P Cr. L J 1121. Proceeding with a murder case in the absence of the counsel representing the accused in custody and examining the main witnesses in chief will be another ground for transfer as held in AIR 1947 All. 436. Events like throwing the application in the face of the accused or using language which might be regarded as rude or not granting small convenience to the lawyers who have to go out of Station would create some sort of apprehension in the mind of the accused that he may not get a fair trial though, actually such event may be unintentional and far from the idea of causing any prejudice to the accused. In 1973 SC 327, it was observed that it is of paramount importance that the parties arraigned before the Courts should have confidence in their impartiality. It is one of the important duties of a High Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by Judge or a Magistrate whom he reasonably regards as being prejudiced against him. What is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances ; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him".
6. The accused is also entitled to be represented by his pleader in serious offences like murder, specially when the accused happens to be in custody. If the accused is unable to make his own arrangement for legal assistance the Sessions Court has to engage a legal practitioner at Government expense to appear before it on his behalf. That has even been pointed out in the Sind Courts Criminal Circulars, Chapter 7, rule 6. Under Article 10 (1) of the Constitution, the rights of the accused have been safeguarded and his right to have a counsel of his choice to defend him in any Criminal proceeding has been recognised. The accused is also entitled to be heard through the pleader before a case is fixed for judgment. He has a right to communicate with his counsel before entering on his defence. Nor can the Court force upon the accused the services of acounsel if he is unwilling to accept them. He should be afforded full opportunity to get proper legal advice and assistance as far as possible.
7. It is possible that the learned Sessions Judge after the passing of the bail order by the High Court in one of the cases, represented by Mr. Allah Dino, may have tried to dispose of these cases expeditiously and for that reason may have declined small conveniences and concessions.
However, if the words and actions of a Judicial Officer though susceptible of explanation and traceable to superior sense of duty, are calculated in the mind of the accused an apprehension not foolish or unfounded that he may not have an impartial trial, it is expedient in the interest of justice that a transfer should be ordered. It is not necessary that there should be actual bias in the mind of the Judge. What has to be considered in this regard is whether the events and incidents though susceptible of explanation and without there being any real bias in the mind of a Judge, are still such as are A calculated to create in the mind of the applicant seeking for a transfer, a justifiable apprehension that he may not have fair and impartial trial. As held in Seargeant v. Williams ((1878)
2 Q B D 558 ), the law has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the suscepti--bilities of the litigant parties. One important object at all events is to cleat away everything which might engender suspicion and distrust of the Tribunal and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.
8. In these cases in which applicants are represented by Mr. Allah Ditto in the trial Court, Mr. Allah Dino has given an undertaking that he would not seek any adjournment and he would do his best to see that the trials ate concluded expeditiously and without delay. He has also pointed out that in most of these cases the parties belong to places which are equidistant from Sanghar as well as Mirpurkhas. Thus, in order to restore confidence in the minds of the applicants who appear to be disturbed though their apprehensions regarding bias in the mind of the Judge may not actually be well founded, these four applications are allowed and the cases are withdrawn from the file of the Sessions Judge, Sanghar and they are transferred to the file of Sessions Judge, Mirpurkhas.