1997 PLP 949 (SCMR)

‑‑‑‑S. 526‑‑‑Transfer of case‑‑‑Principles governing transfer of cases stated. In order to make out a case for transfer, clear and cogent averment should be made which may lead to the conclusion that the conduct of the trial Judge is not proper and is prejudiced. The transfer will be justified if there is a reasonable apprehension in the mind of a party that the Court would not be able to act fairly and impartially in the matter. Such impression should not be based on apprehensions or presumptions but should be substantiated with facts which tarnished the impartiality of the Court. Muhammad Nawaz v. Ghulam Kadir and others PLD 1973 SC 327 ref. Qazi M. Anwar, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner. Sahibzada Akhtar Munir, Advocate Supreme Court and K.G. Sabir, Advocate‑on‑Record for Respondent. Date of hearing: 10th January, 1995. SALEEM AKHTAR, J.‑‑‑The petitioner seeks leave to appeal against the judgment of the learned Judge in Chamber, whereby his transfer application was dismissed.

2. The petitioner is being tried by the Sessions Judge, Peshawar for charges under section 302/324/342/34, P.P.C. He filed an application on 15‑12‑1994 for transfer of the case alleging that the Sessions Judge is biased and prejudiced against him and that death sentence would be awarded to him, large number of prominent advocates are appearing for the prosecution who encircled his counsel and protest made in this regard has gone unredressed, the Sessions Judge seems to be under pressure as the deceased was the brother of the Senior Judge of the High Court. The application was dismissed by the impugned judgment.

3. Mr. Qazi M. Anwar, the learned counsel for the petitioner contended that the conduct of the learned trial Judge proves that he is prejudiced against the petitioner. In support of this contention he has contended that when P.W.13 in his examination‑in‑chief made a statement but in cross‑examination a contrary statement was made, the learned Judge asked question which one of them was correct. On comments being called the learned Sessions Judge explained that the Court had asked the question for clarification. Such question can be asked by the Court which has power to seek clarification for ambiguities created in the statement, without, in any manner, causing prejudice or filling in the lacuna. The question asked by the learned Sessions Judge does not seem to be intended to prejudice the petitioner nor it has been successfully shown that any prejudice has been caused due to the question of the Court. The fact that the deceased is a brother of the Senior Judge of the High Court, does not lead to the conclusion that the learned trial Judge is overawed by this situation. Merely because of this relationship, presumption cannot be drawn that the learned trial Judge ~is prejudiced against the petitioner. In order to make out a case for transfer, clear and cogent averment should be made which may lead to the conclusion that the conduct of the learned trial Judge is not proper and is prejudiced. The transfer will be justified if there is a reasonable apprehension in the mind of a party that the Court would not be able to act fairly and impartially in the matter. Such impression should not be based on apprehensions or presumptions but should be substantiated with facts which tarnished the impartiality of the Court. The principles for governing disposal of transfer application are set out in Muhammad Nawaz v. Ghulam Kadir and others (PLD 1973 Supreme Court 327). The fact that prosecution counsel encircled the learned counsel for the defence, Mr. Qazi"M. Anwar does not seem to be a well founded ground for transfer as no incident of gagging the learned counsel for the defence thereby rendering him unable to perform his duties requiring interference by the Court has been‑cited.

4. The learned counsel for the petitioner contended that in the comments the learned trial Judge has adversely commented upon the conduct of the advocate for the defence alleging that he was delaying the trial. This can hardly be a ground for transfer of the case. From the record it seems that P.W.1 was examined on 28‑9‑1994 and thereafter prosecution witnesses were examined till 30‑11‑1994 when the testimony of the last prosecution witness was recorded. After the prosecution had closed its side the case was fixed for statement of the accused on 11‑12‑1994. The petitioner filed this application for transfer on 15‑12‑1994 without any justification. We do not find any merit in the petition and refuse to grant leave. N.H.Q/M‑3056/S Leave refused.