P (PLP)

[Case transferred.] Mir Fazal Khan, for Petitioner. Public Prosecutor, for Crown. ORDER.

‑This is a revision petition under sections 435/439. Criminal Procedure Code, against the order of the Sessions Judge in Baluchistan, dated 20th July 1950, on an application for transfer of a certain criminal case from his Court to some other Court of competent jurisdiction. The facts of the case are that on 20th July 1950 the peti tioner, who has been accused of an offence under section 367, Pakistan Penal Code, first appeared before K. S. Qari Ghazanfar Hussain in his capacity as a Magistrate, First Class, where committal proceedings took place. In due course a charge was framed against the accused‑petitioner and he was com mitted to the Court of Session to stand his trial. In the meantime K. S. Qazi Ghazanfar Hussain became the Sessions Judge. The grounds for the present petition before one are that it would not be in the interests of justice for a Committal Magistrate who is subsequently promoted as a Sessions Judge to hold the trial in this particular case since he has, by taking the committed proceedings and framing a charge against the accused, already ex pressed an opinion. In the first place, I would observe that the application dated 20th July 1950, which was addressed to the Sessions judge direct, was not an application for transfer falling within the provisions of section 526, Criminal Procedure Code. If this application had been addressed to the High Court, as was proper, and had the Sessions Judge after receiving intimation of such action refused to stay proceedings, there would have been proper 4rounds for the transfer of the case to some other Court. But since the application was presented to himself the Sessions Judge was not bound to stay proceedings in the absence of intima tion to the effect that an application had also been addressed to this Court. On the merits of the case I propose to deal with the peti tion before me. Firstly, there is mandatory provision of the law under which a Committal Magistrate, who has taken pro ceedings and who subsequently becomes a Sessions judge is precluded from hearing cases committed to his own Court. On the other hand, the, main principle governing application for transfer is that a person accused of a criminal offence must have full confidence in the Court which tries him. It is also an accepted principle that bias in the mind of a Magistrate does not neces sarily have to be proved; but if the person accused has reasonable ‑rounds for thinking that bias might exist or arise in the mind of the officer presiding over the trial, there will be good grounds for transfer. In the case before me there is no doubt about that the present Sessions judge has already heard evidence on behalf of the prosecution against the accused‑petitioner and after the hearing of this evidence that he framed a charge. The framing of a charge follows only when a Committal Magistrate considers that there is a prima facie case against the accused, otherwise he would pass an order of discharge. It can of course be argued that since the trial of an accused person only begins in the Court of Session, after he has been committed for trial in that Court, proceedings to that extent are de novo and that the Sessions Judge will decide the case strictly on its merits according to the prosecution evidence recorded in his Court and also after having heard the defence version of the case. The question of bias, therefore, would not appear to arise. But, as I have stated above, the question of actual bias is not an essential ingredient by a Court considering an application for transfer. The Court must see whether the accused person has any reasonable grounds for assuming that bias might exist, or whether the accused will have grounds for reasonable doubt about or alternatively lack of confidence, in the person of the judge or Magistrate who will try him. In this case, while, as I have stated, there is no provision of late requiring the transfer of a case in such circumstances, I feel that there are reasonable grounds for the accused‑petitioner to assume that his trial might be biased and equally that he might not have full confidence in the present Sessions judge in view of the fact that he was responsible for the committal pro ceedings against him, These remarks do not reflect in any way personally upon the present Sessions judge, but in the ends of justice I consider .this is a fit and proper case to direct transfer to some other Court. Since there is no other Sessions Judge in Baluchistan, a reference should be made to the Local Adminis tration with the request that an Additional Sessions judge might be appointed to hear this case which will be transferred by the present Sessions judge to him for trial after appointment. K. M. A. Petition accepted.