1990 PLP 1102 (MLD)

The grounds taken in this application for transfer of the case by the complainant/applicant mainly are that on the date the case was fixed for trial the complainant party saw Muhammad lqbal Memon the father of the accused coming out from the chamber of the learned trial Judge and that the said father of accused had subsequently asked the complainant party to compromise in the case as he had already arranged for the release of his son. The other ground taken in the case is that the learned trial Judge without issuing any summons for the attendance of the P. Ws. and complainant has ordered issuance of bailable warrants which has given rise to the apprehension that the complainant party will not get due justice at the hands of the trial Judge. I have heard Mr.Habibullah Shaikh for the complainant/applicant. He has submitted that the said two grounds are sufficient to give rise to the, apprehension in the mind of the complainant party that they would not get fair trial and, therefore, this is a fit case for transfer. He has placed reliance on the following cases. (1) Muhammad Nawaz v. Ghulam Kadir and 3 others P L D 1973 S C 327. (2) Muhammad Siddik v. The State P L D 1961(W.P.) Karachi 675. (3) S. Iqbal Hussain v. S. Irshad Hussain P L D 1958 (W.P.) Baghdadul Jadid

1. In the first case as cited above the Hon'ble Supreme Court has held as under:‑‑ "We fully endorse the summing up of these principles by the High Court in the case of Rahim Bakhsh mentioned above, namely, that the transfer of the case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter. 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 riot be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him. What is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regarded as unfavourable by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as a reasonable man might justifiably be expected to have. "One important object" as observed by Lush, J. in the famous case of Serjeant v. Dale (1877) 2 Q B D 558, "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 and security'. Thus, where events have happened which are liable to be misconstrued, it is better that justice should be done by a Court whose impartiality cannot be doubted." In the second case the learned Single Judge of Karachi Bench while dealing with an application for transfer under section 526, Cr.P.C. has held as under:‑ "As for ground No. 1 it cannot be denied that the action on the part of the S. D. M. in issuing bailable warrants, was not called for. The record shows that the summons issued by the S. D. M. were returnable on 28‑6‑1.960 but as the summons were not returned on that day the S. D. M. repeated the summons which were returnable on 9‑7‑1960. On this day too the summons were not returned. It is therefore obvious that on that day when he issued the bailable warrants, there was no material on record before the S. D. M. to justify the action under section 90(b), Cr.P.C., which empowers the Courts to issue warrants against the person complained against if he failed to appear and the summons "is proved to have been duly served in time to admit of his appearing in accordance therewith, and no reasonable excuse is offered for such failure". In this case, as said above, even the summons were not returned. The learned S. D. M. does not say that he passed the order on any application made to him by the complainant that the Sub‑Inspector had been served with summons and that he had failed to attend the Court. This action of the Magistrate, in my opinion, must cause reasonable apprehension in the mind of the applicant that he will not be fairly dealt with if the case proceeds before him." In the third case the learned Single Judge sitting at Baghdad‑ul‑Jadid has held as under:‑ "It appears to me, however, that the undue haste with which warrants, though bailable, were issued by Mr. Trimzey against the accused makes it desirable that he should not hear the cases and, acting under subsection (3) of section 526 of Code of Criminal Procedure, I of my own accord, transfer both the cases mentioned above to the Court of the Magistrate, 1st Class, Chishtian, who will hear them in accordance with Chapter XXI of the Code of Criminal Procedure." As against this Mr. Muhammad Aslam Bhutto, the learned counsel appearing for respondent No. 2/accused has opposed the present transfer application and has submitted that the case‑law cited by the learned counsel for the applicant is not applicable to the present case as in all those cases the transfer application was moved on behalf of the accused whereas in the present case the transfer application has been moved by the complainant and, therefore, the same is to be scrutinized very strictly. He has placed reliance on the case of Ghulam Rasul v. Emperor A I R 1941 Lahore

299. In this case, of course, principle was laid down that in case where complainant seeks transfer, his application should be scanned more narrowly than that of accused person but all the same for the reasons given in the said decision the Hon'ble High Court of Lahore was pleased to transfer the case. The learned counsel for respondent No. 2 has submitted that the first ground taken by the applicant is not substantiated without proper evidence and there are inconsistencies in their statements and affidavits. According to the learned counsel they state that they were standing in the veranda of the Court when they saw the father of the applicant coming out of the chamber of the learned trial Judge. He has pointed out that the chamber of the learned trial Judge does not have any door opening in the veranda but the door of the chamber opens in the office of the Court and if any person has to come out of the chamber of the Judge he has to come from the office. From this he has submitted that the door of the chamber of the Judge is not visible from the veranda and, therefore, it cannot be said that the complainant or P. Ws. while standing in the veranda. would have seen the father of the accused coming out of the chamber of the Judge. Remarks of the Judge were also called for and in his remarks also he has submitted the same position. In view of this I am not inclined to accept first ground as given in the transfer application to the effect that the complainant or PWs had seen the father of the accused coming out of the chamber of the Judge. With regard to the second ground taken in the application to the effect that the trial Judge without issuing any summons for the attendance of the complainant and witnesses directly issued the bailable warrants for their attendance, it would be pertinent to refer to the provisions of section 90 of the Criminal Procedure Code. This section is headed "Issue of warrant in lieu of or in addition to summons". The said section is reproduced as under:‑‑ "90. warrant of warrant in lieu of or in addition to summons.‑‑A Court may, in any case m which it is empowered by this Code to issue a summons for the appearance of any person issue, after recording its reasons in writing, a warrant for his arrest‑ (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reasons to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure." It will be seen that this section empowers a Court to issue summons for appearance of any person and that the warrant for his arrest can be issued only A after recording reasons therefore and where the conditions as provided in clause (b) of the above section exist. In the present case the case diary shows that no reasons are given for issuance of bailable warrants for the attendance of complainant and PWs without first issuing the summons. This could be sufficient ground to give rise to apprehension in the mind of the complainant that he would not get fair trial before the said Judge. The first and foremost thing to be considered while dealing with a transfer application is that a party should not be forced to undergo his trial by a Judge or Magistrate whom he reasonably regards ac being prejudiced against him. What is a reasonable apprehension must be decided in each case with reference to the incidents and surrounding circumstances looking at the matter from the point of the view of the party to the case having due regard to his state of mind and the degree of intelligence possessed by him. It may also be observed that in the present case the very issuance of the bailable warrants for the attendance of the complainant and PWs without issuing summons for their attendance would be sufficient ground to give rise to apprehension in their mind. In view of the above legal position Mr. Muhammad Siddiq Kharal, the learned Additional Advocate‑General has very candidly conceded for the transfer of the case. I accordingly allow this application and order the Case No. 185 of 1989 be transferred from the file of learned IIIrd Additional Sessions Judge, Sukkur for trial to the file of learned Sessions Judge, Sukkur. N.H.Q./A‑762/K Case transferred.