1971 P Cr (PLP)

Although in the present transfer application a suggestion was made that the Courts 'concerned in Karachi might not be in a position to maintain 'an impartial attitude; Mr. Brohi confined his arguments to the point that the attitude of the public in Karachi was so hostile to the petitioner that the witnesses and, at the stage of trial, the assessors, might be unfavourable influenced. During the course of arguments, I asked Mr. H. T. Raymond, Public Prosecutor, whether, the existence of a hostile atmosphere, if established, would be a good ground for transfer, but he refused to concede the point, urging that it was the attitude of the Court trying the case that was alone to be taken into consideration. It is true that this view finds some support from a couple of Sind rulings cited by Mr. Raymond, Sugnomal Tabilram v. Phatanda Relumal (A I R 1936 Sind 237) and Haji Imamdino Haji Osman v. Emperor (A I R 1941 Sind 39), but with very great respect I find myself unable to accept it as an accurate exposition of the law on the subject. To my mind, the principle that should be followed is that laid down in the well known English case of Serjeant v. Pale (2 Q B 558), the relevant portion of which runs :‑ "The law does not measure the amount of interest which a judge possesses . . . . . . The law, in laying down this strict rule, has regard note so much perhaps to ' the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to' 'clear 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 arid security." Again, in case The King v: Sussex Justices ex parte : McCarthy (1 K B 256), it is remarked :‑ "A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done; but should manifestly and undoubtedly be seen to be done. . . Nothing is to done which creates even a suspicion that there has been an improper interference with the course of justice." The proposition that the existence of an atmosphere hostile to the accused is a good ground for the transfer of a case has been accepted in a number of cases, of which it is sufficient to cite two, namely, Roshan Lal v. Emperor (A I R 1930 Lah. 954) and Amrit Lal v. Emperor (32 Cr. L J 1188). In the former Tek Chand, J, allowing the transfer, gave as his reason : "What has been stated above is sufficient to show that these cases have assumed an importance of their own, and that they should be tried in a calm and quiet atmosphere where all proper and legitimate facilities can be provided, both to the prosecution and the defence. Certain incidents have unfortunately taken place at Gurgaon, which rightly or wrongly lend colour to the idea that such an atmosphere does not exist at Gurgaon". In the other case Abdul Qadir, J., based his transfer order on the existence of material in the affidavits on the record showing that there was an atmosphere in Dera Ghazi Khan which either was unfavourable to, the accused or about which there were reasonable apprehensions: in his mind. I have, therefore, no hesitation in holding that if the defence succeed in establishing the existence of an atmosphere hostile to the accused, a goad case for transfer is made out. In support of his contention that such an atmosphere does, or at least did, exist, Mr. Brohi drew my attention to several documents. The first of these is an affidavit dated the 1st of September 1956 Mr. Khalid Ishaque, counsel for the petitioner, in which, inter alia, he alleges.‑ "As soon as the Police van bringing the petitioner and his co‑accused came into the Court compound, violent demonstra tions. took place, the people shouting that the accused should be delivered to them at once to be shot dead and or torn to pieces. Violent and filthy abuse was hurled at the accused and the C. L D. It was with great difficulty that the van carrying the accused was allowed to reach the Court lock‑up. When the accused were intended to be produced in Court, the crowd demanded that the accused be delivered to them for disposal and for three hours it was impossible to take the accused from the Court lock‑up to the Court room which is about 50 yards distance. It was only after several truck loads of police reinforcement had been summoned and extensive precautions against a possible riot were taken that the accused could be produced in Court. That so great was the public feeling against the accused that even I found it extremely difficult to see the petitioner, in the Court lock up. When I came out of the lock‑up, I was surrounded by a crowd of several thousand who threatened to do me violence saying zalimon ke vakil ko pakar lo.' With great difficulty I could manage to slip away and by mixing with other Advocates saved myself." In his report on the allegations contained in the transfer applica tion, Mr. Ali Jawad, City Magistrate, before whom the commit ment proceedings were pending, does not admit that any danger of a breach of the peace existed; remarking "My own impression of what happened was one of surprise at the considerable degree of restraint observed by the crowd, considering that such crowds are (excitable and capable of being misled into doing anything improper or violent." This appreciation of the situation contrasts somewhat strangely with the following passage from the same Magistrate's order dated the 26th of July 1956: "It appears likely that large crowds of people are likely to continue to collect here on subsequent dates of hearing also of this case. This will create a difficult situation from the point of view of late and order. It is not improbable that a contingency for resort to force may arise, and it would be necessary and desirable to avoid the same. Hence I consider it more expedient to hold the trial of this case on subsequent dates of hearing at the District Prison, Karachi. The following extract from the issue of the Karachi newspaper "Dawn" dated the 26th of July 1956 also shows the view of situation taken by at least one section of the press :‑ "A crowd of ten thousand booed and jeered at nine policemen accused in the Noor Mohammad Mamon's case, were brought to the City Magistrate's Court yesterday morning. The people had occupied vantage points in the surrounding buildings and the Court. premises itself. The arrival of the green and red prison van, carrying the under‑trials at the Court, set off an unprecedented outburst of public resentment against the accused policemen. Abuses were hurled at them, so were also stray old shoes. Some people just spat to vent their pent‑up fury." Other instances could be cited, but those already given are sufficient to show that, whatever may have been the atmosphere inside the Court room itself, that prevailing outside was far from favourable to the accused. Mr. Ali Jawad is of the opinion that interest in the case has now completely died down, but I am unable to share his optimism, and there can be no guarantee that the unruly scenes that took place at the, previous hearings of the case would not be repeated if further proceedings were taken in Karachi. In these circumstances I consider that the interests of justice' require that the case be transferred to a district where a calmer and more rational atmosphere will prevail. The only question remaining is that of the future venue. Mr. Brohi strongly objected to the accused's being tried at Hyderabad, and asked that they should be sent either to Mirpurkhas, Sukkur or Nawabshah. Of these, Mirpurkhas is stated by counsel to be the most convenient. I accordingly direct that further proceedings in this case up to and including the stage of trial be held there. Case transferred.