2005 PLP 1101 (MLD)

PLD 2003 SC 808 ref. Ch. Muhammad Ashraf Mohandra for Petitioner. Mumtaz Mustafa for Respondents Nos.2 and

3. M.A. Farazi for the State on Court's Call. This Criminal Revision calls in question the legality and vires of order dated 6‑1‑2005 passed under section 540, Cr.P.C. by Mr. Akhtar Bahadur, learned ASJ‑II, Sadiqabad, District Rahim Yar Khan, whereby the learned ASJ during trial of murder case F.I.R. No.400 of 2002 under section 302/34, P.P.C. Police Station City Sadiqabad titled "The State v. Muhammad Arshad and others directed that Habit? Ullah Malik, Chief Editor of daily newspaper "Saaf Saaf", Rahim Yar Khan to be summoned for 11‑1‑2005 from whom the whereabouts of photographers, who had taken photographs of respondents Nos.2 and 3 showing their arrest by police on 4‑9‑2002 whereas according to the police these accused were arrested on 8‑9‑2002 would be obtained and thereafter the evidence of such photographer would be recorded.

2. When this revision petition came up for urgent hearing today, Mr. Mumtaz Mustafa, Advocate voluntarily appeared on behalf of respondents Nos.2 and 3 whereas, Mr. M.A. Farazi, learned counsel for the State appeared on Court's call.

3. So far as the impugned order of summoning the witnesses is' concerned, I do not feel any irregularity or illegality having been committed by the learned ASJ while passing the impugned order. The impugned order rather is in line with the law declared by the Hon'ble Supreme Court of Pakistan in case "The State v. Muhammad Yaqoob and others" (2001 SCMR 308) and "Imran Ashraf and 7 others v. The State" (2001 SCMR 424). Hence, no exception can be taken to the same and revision petition is accordingly dismissed.

4. However, what disturbed me more is the following observation recoded by the learned ASJ in Para. 1 of the impugned order:‑‑ "The arrest of these accused in police record is of 8‑9‑2002, so if it is proved that accused persons were arrested on 4‑9-2002 as published in daily local newspapers Saaf‑Saaf; Rahim Yar Khan, then the prosecution case stands nowhere and recovery of Motorcycle and pistol effected seem to be fake because accused were already in the custody of the police. " I, therefore, directed the learned counsel or the respondents as well as for the State to assist me as to whether or not these observations of the learned ASJ were called for while exercising his jurisdiction under section 540, Cr.P.C. Both the learned counsel not only were of the view that the above observations of the learned ASJ were un‑called for and, unwarranted having no nexus with the language of section 540, Cr.P.C. but also agreed with me that these observations amount to pre‑deciding the controversy which should not have been recorded at all. I do not know what made the learned ASJ to record such observations. Might these observations be correct while deciding the case on merits after recording of entire evidence including the one being summoned through the impugned order but it was no stage to make such uncalled for and unwarranted observations while passing the impugned order. I am conscious of the fact that the learned ASJ might have made these observations quite innocently and not with any ulterior motive yet the fact remains that from the bare perusal of these observations one is bound to smell some sought of bias or prejudice in the mind of learned ASJ; again may be innocently or without no ulterior motive at, all. In criminal matters it is the right of the parties to have fair trial uninfluenced or unbiased by any act of the Court and it is also an established principle of law that act of Court should not prejudice any party. If any authority is needed, PLD 2003 SC 808 is answer to the said proposition. Keeping in view the above‑mentioned circumstances, I am of the considered view that further trial of the case by Mr. Akhtar Bahadur, learned ASJ would not be in the interest of safer administration of justice. I am fully conscious of the labour put by the learned ASJ in completing the trial and in ordinary circumstances it would not have been withdrawn from him but to dispel any apprehension in the mind of the accused or the complainant created by the above‑mentioned observation recorded by the learned ASJ, I am inclined to withdraw the remaining trial of the above‑mentioned case from Mr. Akhtar Bahadur learned ASJ -II, Sadiqabad and entrust the same to learned ASJ‑I, Sadiqabad, before whom the parties shall appear on 1‑2‑2005 for onward hearing of the trial. Needless to observe that the learned ASJ‑I, Sadiqabad while deciding the trial shall not be influenced by the above‑mentioned observation and he will decide the same according to law, evidence and voice of his own conscience. Copy of this petition be sent to both the learned ASJs for compliance. H.B.T./M‑890/L Order accordingly.