1999 P Cr (PLP)

By this application under section 526, Cr.P.C. the applicant Manzoor Ali son of Muhammad Jagirani has sought transfer of Sessions Case No. 136 of 1997, State v. Ghai from the Court of Additional Sessions Judge, Sanghar to any other Court of competent jurisdiction.

2. The applicant is the complainant in the case F.1.R. No.7 of 1997 lodged at Police Station Khadro, District Sanghar on 14-6-1997 against his brother Ghai Khan under section 302, P.P.C. for having murdered the wife of the applicant/complainant. The trial of the said case in the Court of Additional Sessions Judge, Sanghar has commenced and it appears that the evidence of the applicant/complainant and one mashir Karam Ali has been recorded. The applicant is said to have resiled from the facts stated in the F.I.R. and has stated some other facts, while mashir Karam Ali is said to have not supported the mashirnama and he has stated that he was called at Police Station and his signatures were obtained at Police Station. The learned trial Court has issued notices under section 193, P.P.C. to the applicant as well as to the mashir Karam Ali and the trial Court is alleged to have expressed that they being related to each other have patched up and they are intentionally giving false evidence to save their relative. This has given apprehension in the mind of the applicant that he has no hope of justice and he will not have fair or impartial trial in the said trial Court.

3. This Court on 20-4-1998 called for the comments from the trial Court, which have been received on 8-5-1998.

4. In the comments, the learned trial Court has not denied to have uttered the above words, which have given apprehension in the mind of the applicant that he will not have a fair trial in his Court. The comments show that the learned trial Judge has assumed that the applicant/complainant has compromised with his brother and wants to save him. The learned trial Judge has stated: "Applicant/complainant has changed his version as stated in the F.I.R. by giving false evidence for which notice under section 193, P.P.C. is issued against applicant/complainant Manzoor Ali and apprehending him for life for action has filed present transfer application."

5. In other words the learned Judge has pre-determined before the trial under section 193, P.P.C. that the applicant has given false evidence and apprehending for life to action has filed present transfer application. 6. 1 have heard Mr. Allah Bachayo Soomro, learned Advocate for the applicant who has reiterated the same contentions as stated above and Mr. Ali Azhar Tunio, learned A. A.-G. has raised no objection and conceded to the transfer of the case.

7. In the case of Muhammad Nawaz v. Ghulam Qadir and 3 others reported in PLD 1973 SC 327 the Honourable Supreme Court has observed: " . . . . . . It is of paramount importance that parties arraigned before 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 a Judge or Magistrate whom he reasonable regards as being prejudiced him.

8. It is well settled that action under section 193, P.P.C. is not to be taken against a party during proceedings of trial but is to be taken after conclusion of the trial so that case of either party may not be prejudiced.

9. In the case of Mian Muhammad Rasheed v. The State reported in 1970 SCMR 694 the Honourable Supreme Court transferred the case where statement of witnesses provoked the Magistrate who remarked that "I should arrest him now" intending thereby to proceed against the accused under section 476, Cr.P.C. The Honourable Supreme Court has observed that the Magistrate could have taken action under section 476, Cr.P.C. at the conclusion of trial but was not justified in giving positive indication of his inclination during pendency of trial.

10. In the present case, the situation is almost similar as in the case of Mian Muhammad Rasheed (supra). The learned trial Judge in his comments has not controverted nor denied that he had not uttered the words attributed-to him quoted above but, on the contrary, he has almost given his finding that the applicant/complainant has given false evidence by changing his version of F.I.R. This means that the learned Judge has pre-determined the guilt of the applicant without the trial of the applicant under section 193, P.P.C. In my view this is the sufficient and genuine apprehension in the mind of the applicant that he will not have a fair and impartial trial in the Court of learned Additional Sessions Judge, Sanghar.

11. For all the reasons stated supra and considering the facts and the case law referred to above, I am of the considered view that it is a fit case for transfer from the file of the learned Additional Sessions Judge, Sanghar.

12. The upshot of the above discussion is that Criminal Transfer Application No.9 of 1998 is allowed and Sessions Case No.136 of 1997 (State v. Ghai Khan) is withdrawn from the file of learned Additional Sessions Judge, Sanghar and the same is transferred to the Court of the learned Sessions Judge, Sanghar for disposal according to law. H.B.T./M-322/K Application allowed.