P L D 1967 Lahore 1129 (PLP)

This is a petition under section 526 of the Criminal Procedure Code, for transfer of the commitment proceedings pending in the Court of Mr. Hamid Ahmad, Magistrate 1st Class, Rawalpindi, against Zafar Mahmood alias Master Khaki Zaman and others, who stand charged with offences, under sections 148, 302/149 of the Pakistan Penal Code. The petition has been moved by Muhammad Ashraf, a prosecution witness, and a relative of Amir Muhammad Khan, who is said to have met his death on account of the injuries caused by the above accused on the 15th of May 1966, in the area of village Usman Khattar in Rawalpindi District. The grounds for transfer are as under:‑ (i) That on the 29th of December 1966, "when the prosecu tion closed their case, the learned Magistrate passed an order granting bail to Zafar Mahmood alias Master Khaki Zaman, although only a week before that, the High Court had rejected the bail application of this accused. (ii) That in passing that order, he had expressed his opinion, as to the value of the statements of the eye‑witnesses in the case, and had thus precluded himself from dealing with this case. It is also stated that in passing the above order, the learned Magistrate completely ignored the dying declaration made by the deceased, wherein he had definitely implicated Master Khaki Zaman. (iii) That the learned Magistrate had on the 16th of January 1967, passed an order summoning four persons as Court witnesses, who were produced during the investigation before the police by the accused in their defence. The grievance on this score briefly is that it was for the defence to choose whether they would like to produce any evidence and the Magistrate has, by this order, put the defence in a position of advantage, vis‑a‑vis, the prosecution; because the defence will be in a position to cross‑examine their own witnesses. This circumstance, according to the petitioner, indicates a tendency on the part of the learned Magistrate to favour the accused.

2. The grievances made in sub‑paras. (i) and (iii) above are the subject‑matter of separate petitions before me. Criminal Miscellaneous No. 777 of 1967 is for cancellation of bail granted by the learned Magistrate to Master Khaki Zaman and another, and Criminal Revision No. 213 of 1967, has been filed against the order of the learned Magistrate, dated the 16th of January 1967, summoning four persons as court‑witnesses. I have dealt with those petitions separately, and have set aside both the orders vide my order of even date.

3. I had sent for the records of this case and I find that the prosecution evidence concluded on the 29th of December 1966. On the same day, the application for bail on behalf of Master Khaki Zaman was presented to the Court, and there is no indica tion from the record, that any notice of this application was issued to the prosecution, or they were heard before the order granting bail was passed. I also find that on the 16th of January 1967, when the order regarding summoning of four persons as court‑witnesses was passed nobody was present on behalf of the prosecution. It is also significant that in the first instance, a brief one line order was passed regarding the summoning of these witnesses, but below that a detailed order, bearing the same date, finds place. Ordinarily, there will be no occasion to pass another order after the first brief order had been passed, but it appears that subsequently whether on the same day or there after some necessity was felt to write a detailed order.

4. It is correct that I had dismissed the application for bail by Master Khaki Zaman on the 22nd of December 1966, "after going through the dying declaration of the deceased and other evidence recorded by the learned Magistrate. The learned Magistrate granted bail, because he found that the eye‑witnesses, who had appeared in the case, had omitted to mention before the police, the part attributed to Master Khaki Zaman in the evidence before the Court. The High Court, when it refused bail only a week before the learned Magistrate passed this order grant ing bail to Master Khaki Zaman, had considered this evidence, and had, for good reasons, refused to go into the merits of the case. The contention of the learned counsel that the learned Magistrate, in passing this order, completely ignored the dying declaration of the deceased, as also the evidence of Muhammad Ashraf (P. W. 13) recorded on the very date, on which the order granting bail was passed, is also correct.

5. I have held in Cr. Rev. 213 of 1967 that in passing the order summoning four persons as court‑witnesses, who could have been produced as defence witnesses by the accused them selves, the learned Magistrate has not properly exercised his discretion. The circumstances that the prosecution does not appear to have been heard in this connection, and that the same order has been repeated, have been detailed above.

6. Mr. M. A. Zullah, the learned counsel for the petitioner has vehemently argued that the conduct of the learned Magistrate, in dealing with these applications, and in passing a bail order, which amounted practically to a review of the order by the High Court, has created a reasonable apprehension in the mind of the prosecution, that they will not have a fair deal in this Court.

7. While dismissing the bail application of Master Khaki Zaman on 22‑12‑66, I had of course, observed that the Magistrate could again consider the matter of bail, after the conclusion of the prosecution, evidence, but the learned Magistrate spelt out from this observation a permission to grant bail to Master Khaki Zaman on the same evidence, which to say the least, was a rare feat of overstraining the language where its invent was quite clear. The learned Magistrate, without waiting for the accused to make a statement and in all probability, without: hearing the prosecution, has summoned such four persons as court‑witnesses, who were essentially defence witnesses. It should have been left to the accused to state, whether they wanted to produce those persons as their witnesses.

8. The fact that a Magistrate has passed an order, which has been found to be unsustainable, does not in itself provide a ground for transfer of a case, but where the circumstance attending the passing of such an order are capable of raising a apprehension in the mind of a party that it is not likely to receive, a fair deal in that Court, the interests of justice demand, that the case should be withdrawn from that Court. The law conferring powers on the High Court to transfer a case from one Court to another is based on the susceptibilities of the litigant public and derives its origin from the maxim that justice should not only be done, but appear to be done. The object is to sustain public confidence in Judicial Tribunals, and to root out any suspicion, or distrust from the minds of the litigant public. The determining factor in passing an order of transfer is the effect that the circumstances may have created on the mind of a party But the circumstances must exist. They should be real and not merely imaginary or fanciful. It was held by the Privy Council in the case of Varsiliades v. Varsiliades and another (A I R 1945 P C 38) a case from Supreme Court of Cyprus, that it was highly desirable that any proceeding should be dealt with by persons, who are above any suspicion, however, unreasonable, of being biased.

9. As a result of what I have said above, I think, it will be in the interest of justice, if this case is withdrawn from the file, of Mr. Hamid Ahmad, Magistrate 1st Clase, Rawalpindi. The District Magistrate, Rawalpindi, will entrust it to some other Court of competent jurisdiction. K. B. A. Application accepted. Case transferred.