2004 PLP 885 (YLR)

S. 526

Transfer of case-Principles-- Passing of a wrong order or in violation of the procedure by the Court, by itself, is not a sufficient ground for transfer of a criminal case. Muhammad Mustafa's case and others 1977 PCr.LJ 677 ref. (f) Criminal Procedure Code (V of 1898)

S. 526

Transfer of case

Principles-- Proceedings cannot be transferred merely on the suspicion or whims of a party. Khadim Nadeem Malik for Petitioner. Muhammad Qasim Khan, A.A.-G. (on Court's call). The petitioners have filed this application for transfer of case F.I.R. No.109 of 2003, dated 5-1-2003 registered under section 302/34, P.P.C. at Police Station Basti Malook, District Multan from the Court of Mr. Abdul Sattar, Additional Sessions Judge, Multan to any other Court of competent jurisdiction in the interest of justice.

2. The learned counsel of the petitioners submits that petitioners filed an application for ascertaining the age of Ahmad Nawaz accused for his trial before the learned Additional Sessions Judge, who dismissed the application of the petitioners with the following observations:-- "It appears that by filing the application under discussion the petitioners want to seek concession in the matter of punishment in the aforesaid discussion. The application in hand is without any merit, it is dismissed." He further submits that petitioners have apprehension that the petitioners would not get any justice from the Presiding Officer. He further submits that the Presiding Officer had remarked in open Court while discussing the merits of the application of the petitioners that he would award capital punishment. He further submits that the apprehension of the petitioners is sufficient ground for transfer of the case from the learned trial Court to any other competent Court. In support of his contention, he relied upon the following judgments: -- (i) Mst. Rachel Joseph v. Aftabuddin Qureshi and others (1999 Cr.LJ 572); (ii) Syed Jaffar Raza Naqvi v. The State (1996 MLD 606); (iii) Government of N. W.F.P. through Chief Secretary and another v. Dr. Hussani Ahmad Haroon and others (2003. SCMR 104) and (iv) Haji Khawar Saleem v. The State (2001 SCMR 905).

3. The learned Law Officer entered appearance on Court's call; he submits that application is not maintainable.

4. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record.

5. It is an admitted fact that the petitioners had filed application for ascertaining the age of petitioner No.1 before the learned Additional Sessions Judge, Multan, who dismissed the same in view of the law laid down by the superior Courts in the following judgments:-- (i) Muhammad Hayat v. Muhammad Iqbal and others (2002 PCr.LJ 1237); (ii) Muhammad Ishaq v. Muhammad Nadeem and another (2002 SCMR 440) and (iii) Muhammad Ajmal v. The State through Advocate-General, Punjab (PLD 2003 Supreme Court 1). It is settled principle of law that observations in such type of order are of tentative nature. It is not borne out from the contents of the application that the petitioners have availed the remedy under the law in the judicial side against the order of the learned Additional Sessions Judge, dated 11-7-2003. The aforesaid observation is in terms of the law laid down by the superior Courts in the aforesaid judgments. In case such type of application is accepted, then there will be no end and no trial can be concluded. It is also settled principle of law that general allegation of malice is not sustainable in the eye of law as laid down by the Hon'ble Supreme Court of Pakistan in Saeed Ahmad Khan's case (PLD 1974 SC 151). The aforesaid dictum laid down by the Hon'ble Supreme Court re-affirmed in Amanullah Khan's case (PLD 1990 SC 1092). As mentioned above, the petitioners have alleged general allegations against the Presiding Officer which is not sustainable in the eye of law. The petitioners have not availed the remedy against the order of the Presiding Officer before this Court which is not borne out from the contents of this application. This fact brings the case of the petitioners in the area that the petitioners have not approached this Court with clean hands. It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law. In the present case, the Presiding Officer has decided the application of the petitioners in judicial side and any observation which was made by him, as mentioned above, is of tentative nature and the petitioners have alternate remedy against that order in the judicial side. The petitioners have not, as mentioned above availed the judicial remedy, therefore, it appears that the petitioners have filed this petition simply to prolong the proceedings so that the trial should not be concluded. It is settled principle of law that the test of reasonableness of the apprehension must be satisfied namely, that the apprehension must be such as a reasonable man might justifiably be expected to have. It is also settled principle of law that Presiding Officer in case decided any application of any party before the trial commenced, is not a ground for transfer of a case as per law laid down by the Honourable Supreme Court in "Muhammad Ishaq v. Muhammad Nawaz Malik" 1979 SCMR

147. It is also settled principle of law that mere apprehension of being convicted, is not a ground for transfer of case, as per law laid down in "Chuni Lal's case (196 Indian Cases 816) = NLR 43 Cr.LJ 71 it is also settled principle of law that in case, the Presiding Officer has passed wrong order or in violation of the procedure by itself, is not sufficient ground for transfer of criminal case, as per law laid down in "Muhammad Mustafa's case and others (1977 PCr. LJ 677). It is also settled principle of law that the proceedings cannot be transferred merely on suspicion or whims of a party. Therefore, unsubstantiated assertion that Additional Sessions Judge, seized with trial of case was of same political/ philosophical/secretarian persuasion as petitioner's opposing party, would not warrant transfer of case, as per law laid down in "Abdul Ghafoor v. The State" (1993 PCr.LJ 1784).

6. In view of what has been discussed above, this petition has no merit. However, in the interest of justice and fair-play, let a copy of this petition be sent to the Presiding Officer, who is directed to submit reply of the petitioner in the administrative side to the Deputy Registrar (J) of this Court within 20 days. With these observations, the petition is disposed of. N.H.Q./A-907/L Petition dismissed.