P L D 1962 (W (PLP)

Date of hearing: 26th September 1960. This is an application by Sarwar Khan for transfer of his case pending In the Court of the Additional City Magistrate, Karachi. The grounds on which this transfer is sought is that after the complainant gave his statement, the learned Magistrate directed that no further evidence need be produced in this case, and he would hear arguments on May 16, 1960.

2. According to the applicant, this attitude of the trial Magistrate has created an apprehension in his mind that the Magis trate had already made up his mind in this case, and further that the allegations made were not denied by the learned Magistrate in his report submitted to this Court. Nothing has been said by the trying Magistrate about his directions that no further evidence was to be produced in this case.

3. The learned counsel representing the applicant said that his witnesses were ready and they should have been examined. It was quite open to the Magistrate to have discharged the accused at any stage he wanted, but by shutting his evidence an apprehen sion was created that he may not get his case properly heard.

4. The counsel for the applicant placed before me two cases decided by the Nagpur High Court before Partition. They are Abdullah v. Emperor (A I R 1926 Nag. 448) and Jairam Singh v. Emperor (A I R 1927 Nag. 384). It was held in the former case that if an accused person does in fact believe that he will not have a fair and impartial trial in a certain Tribunal, it is fn the last degree inexpedient that he should be tried by it and the case must be transferred, unless that is impos sible, however high the certainty of the impartiality of that Tribunal may be in the minds of all right‑thinking men, and how ever discreditable to him the existence of that belief in his mind may be. But the allegation of the accused, like any other, must be examined and found true before it can be accepted. The question is not whether the belief is reasonable or unreasonable but whether it exists or not, though the only way of deciding whether ft exists or not is to see whether it might reasonably be expected to exist in a person of the standards of intelligence and A honesty common in the class to which the accused belongs. This ruling has also referred to another ruling: Machal v. Matni (22 I C 980).

5. This judgment has also been supported by the other ruling Jairam Singh v. Emperor already referred to. It is not therefore a question whether the apprehension of the applicant is unreason able. We must look to the effect it will have on a person of the intelligence of the applicant.

6. To my mind the proper procedure would have been to allow the evidence of the complainant to be produced, and then to give a finding whether a case had been made out or not before the charge was framed. As this was not done, it is possible to expect that reasonable apprehension could be caused in the mind of the applicant by the procedure adopted by the trial Magistrate.

7. I accordingly accept the application and order that the case be transferred to the Court of some other Magistrate within the District. S. B./A. H. Application accepted.