1985 PLP r (PCRLJ)

This petition has been filed by Abdul Aziz complainant for the transfer of a murder case titled State v. Muhammad Sharif and others from the Court of Sheikh Ikram‑ud‑Din, Additional Sessions Judge, Bahawalpur on the ground that he does not expect impartial trial by that Court.

2. It is stated that almost all the prosecution witnesses have since been examined and only two formal witnesses i.e. S.H.O. and the Medical Officer remain to be examined. A similar application (Criminal Miscellaneous No. 1328‑T‑84/BWP) brought by Abdul Aziz was dismissed by me on 15‑10‑1984 as he then only wanted, the case should be expeditiously disposed of as the delay had resulted in release of the accused party on bail on statutory ground. However, the Presiding officer was directed by me to give preference to this case over other cases in the matter of disposal. It appears that at one time learned Presiding Officer had also requested the learned Sessions Judge to transfer this case from his file but that suggestion was not acceded to.

3. This time the petition has been moved on the allegation that respondents Nos. 2 to 14 who are accused in the case have sold out their land through mutation No. 4 attested on 21‑11‑1984 for a sum of Rs.72,000 and they as well as their relatives have pronounced openly in the village that they had settled with the trial Court for the acquittal of all the accused /respondents. Learned counsel appearing on behalf of the respondents submitted that the allegation is false particularly because this allegation does not find mention in their earlier petition. He further argued that the aforesaid respondents had purchased some land through oral agreement in the year 1970 and because the defendant in the said case did not get attested the necessary mutation in their favour, therefore, they were obliged to file a declaratory suit on 9‑12‑1984 which is pending in the civil Court and that the money received by selling their land is to be paid to the defendants in that civil suit.

4. I have carefully considered the contention of the parties and also perused the comments sent by the learned trial Court refuting the allegation.

5. It may be stated that the excuse of the respondents that they would pay the amount (received by selling their land) to the defendants of the declaratory suit filed by them in December, 1984 is not tenable for the simple reason that in that suit they specifically stated that they have already paid the price of the suit land to the defendants.

6. It is well‑settled by now that justice should not only be done but seem to have been done. In Muhammad Nawaz v. Ghulam Qadir and others P G D 1973 S C 327, it has been held that the transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter." It was further observed "it is one of the important duties of a High Court to create and maintain such confidence, and this can be done only be ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him."

7. The respondents /accused (respondents Nos. 2 and 14) admittedly sold out their land a month before. This fact coupled with their pronouncement that they have settled for their acquittal with the Court, when actually the case is near to the decision, to my mind, has created B reasonable cause of apprehension in the mind of the petitioner that the accused /respondents might get undue favour from the trial Court. In these circumstances, I feel inclined to allow this petition. Accordingly the case is transferred from the Court of Sheikh Ikram‑ud‑Din, Additional Sessions Judge to the Court of Sessions Judge, Bahawalpur, who shall either hear this case himself or entrust it to some other Additional Sessions Judge, working under him for disposal according to law. H. A. Petition allowed.