1999 P Cr (PLP)

Ali Nawaz Ghanghro and Asif Ali Abdul Razak Soomro for Respondents. Date of hearing: 2nd April, 1998. The applicant who is complainant in Sessions case Re: State v. Abdul Sattar Chandio and others (arising from Crime No.76 of 1995 Police Station Drigh Taluka Kambar) under sections 302 and 34, P.P.C., has moved this transfer application praying for transfer of Sessions case pending trial before the learned Additional Sessions Judge, Kambar to any other Court of the District. Mr. Muhammad Nawaz Chandio, learned counsel for the applicant has argued that the Judge has developed illwill against the complainant as he had moved an application objecting the grant of bail to the respondent No.2 and copy of such application was sent to the Honourable Chief Justice of High Court of Sindh. He has further argued that the accused had brought the Nekmard of the community to pressurize the complainant and, on refusal, he was told that the said Judge is on good terms with them and it is further alleged that the Nekmard was also found coming from the retiring room of the trial Judge. In support of these allegations, the applicant has filed his personal affidavit. Messrs Ali Nawaz Ghanghro and Asif Ali Abdul Razak Soomro appearing for the accused/respondent have submitted that the allegations are totally false and fabricated and appeared to be unbelievable. They further argued that the complainant has filed the transfer application because the learned Additional Sessions Judge had granted bail to the accused and that order was never challenged by the applicant and they, therefore, pray for dismissal of the transfer application. Mr. Mian Khan Malik, Additional Advocate-General appearing for State has also opposed the transfer of the case from the Court of Additional Sessions Judge, Kambar to any other Court. I have considered the arguments advanced by the learned counsel for the parties and have gone through the comments. The Additional Sessions Judge, Kambar in his comments has denied the allegations and has stated that the applicant has levelled false allegations as a device to harass the Trial Court so that the applicant may have a result of his choice. He has admitted moving of application to the Honourable Chief Justice praying therein that the accused may not be granted bail. The Advocates for the parties, on question, have informed that the bail was granted by the Additional Sessions Judge on 3-5-1997 whereas present application has been moved on 6-3-1998 viz. after about ten months of the grant of bail and, therefore, in my humble view, this argument of the learned counsel for the respondent cannot be accepted that the transfer application has been moved on account of grant of bail. The learned Judge in his comments has stated that the applicant has levelled false allegations as a device to harass the trial Court so that he may have the result of his choice in this case. These words of the Presiding Judge can create in the mind of complainant an apprehension that he may not get the proper justice. From all the above circumstances, it can be said that the apprehension in the mind of the complainant may be ill-founded and not supported by any clear indication because the applicant has not disclosed the name of Nekmard who approached him for settlement but yet apprehension in the mind of complainant is there particularly when, in the comments, the trial Judge has said that the applicant has moved this application as a device to get the decision of his choice then the mind of the Judge can also be affected by such impression. Therefore, in order to restore the confidence in the mind of the applicant, though the apprehension regarding bias in the mind of Judge may not be actually well founded, this transfer application deserves to be allowed. Keeping in view all these circumstances, I feel that the case may be transferred and be sent for trim to some other Additional Sessions Judge at Larkana. Accordingly, this Transfer Application No.4 of 1998 is allowed and the Sessions case re: State v. Abdul Sattar Chadio and others pending on the file of Additional Sessions Judge, Kambar is transferred to the file of IVth Additional Sessions Judge, Larkana who shall proceed with this case expeditiously. H.B.T./M-324/K Transfer application allowed.