P L D 1990 Supreme Court 705 (PLP)

This incident provoked considerable public indignation. The local student community took out a procession against the accused‑petitioners where slogans were raised demanding their blood. The District Magistrate attended the "Qul" ceremony of the deceased where he announced the award of Rs. one lac to the family of the decelised as compensation as also the award of scholarships to the brother of the deceased for further study. The Deputy Commissioner/District Magistrate also addressed a D.O. letter on 22‑1‑1990 asking the learned Sessions Judge at Mianwali to fix the case out of the turn and to hear the matter on day to day basis because the case was of sensational nature and had caused a wave of anger and resentment among the general public. The learned Sessions Judge also took prompt action on this letter and fixed the trial on day to day basis and the reason given for out of turn fixation of the case was that it was of sensational nature and the masses had expressed reaction by carrying out processions and holding strikes. At this stage the petitioner moved a transfer application before the High Court alleging that the local atmosphere was not congenial to the trial of the case and this case was given undue publicity not only in district Mianwali but also the entire Punjab, that some officials and non‑officials in the locality had formed pre‑conceived notions about the case; hence it should be tried in some district other than Mianwali district. The learned Judge in the High Court, who heard this transfer application, was not persuaded to agree. He observed:‑‑ "The mere fact that some processions were taken out or the students had demanded the execution of the petitioners would not mean that the learned trial Court would be influenced by the same". He went on to observe that the situation by now was absolutely calm and, in such circumstances, the argument that the learned trial Court might be influenced by the charged situation was 'no longer available. The learned Judge, therefore, opined that in the circumstances it could not be said reasonably that the petitioners have an apprehension about not getting a fair trial. Accordingly, the petition was dismissed vide order dated 12‑3‑1990. Hence this petition for leave to appeal. Mr. Ijaz Hussain Batalvi in support of this petition has mainly relied on the observations of this Court in the case of Muhammad Nawaz v. Ghulam Kadir and others FLD 1973 SC 327, and drawn our particular attention to the following observations appearing in the judgment:‑ "Although these cases deal with a wide variety of circumstances and ground ' s urged for their transfer from one Court to another, yet certain well‑defined principles of general application are clearly discernible. 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 a 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 not 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." The learned counsel has emphasized that the most important factor to be kept in view is to see whether the petitioners accused could not have a reasonable apprehension that they will not get fair and impartial trial at Mianwali when the atmosphere at Mianwali against them is hostile and surcharged? In our opinion, however, the factor which is to be seen is whether in the given circumstances the alleged apprehension of not getting a fair trial is an apprehension that a "reasonable man" might justifiably be expected to entertain. As observed by Hamoodur Rehman, C.J. in the judgment relied upon by the learned counsel himself "the test of reasonableness of the apprehension must be satisfied, namely, that the apprehansion must be such as a reasonable man might justifiably be expected to have". In case the submission of the learned counsel is accepted then in each and every case of sensational kind, where the people of the, locality become agitated and get aroused by the nature of the occurrence, no trial will be possible in a Court of the district where the occurrence has taken place, only because of the initial wave of the indignation felt by the local populace and the attempt of the authorities to see that the accused persons are arrayed before the Court of law as soon as possible. The acceptance of such a principle would indeed be fraught with danger and mischief The safeguard for the accused is that the Court should carefully weigh whether the apprehension being expressed is really such as a "reasonable man" might justifiably be expected to have in the facts and circumstances of the case; if so, it should transfer the case, but, if not, let the case proceed where it is to be tried normally. In this case, the occurrence took place in November, 1989. Admittedly, the agitation and indignation which were expressed soon after the incident is not being expressed any longer and to use the words of the High Court, had died out. The trial is to be held by the learned Sessions Judge himself and nothing has been shown to us to indicate that the learned Sessions Judge has been affected in a manner by the public protests of November, 1989 or that he is not likely to conduct the trial fairly and in an impartial manner. In the result, we agree with the learned Judge of the High Court that this is not a fit case in which the trial of the case should not take place in District Mianwali and the case should be transferred out of the District Mianwali for trial in another district. By the short order passed on 21‑3‑1990 this petition was rejected for reasons to be recorded separately. The above are our reasons for the said order. M.BA./D‑76/S Petition rejected.