1985 P Cr (PLP)

The facts bearing on this application under section 526, Cr.P.C. for order for transfer of the case titled Muhammad Shafi v. Nazir Ahmad under section 307/506, P.P.C. from the Court of Mehr Ghulam Rasool, learned Sessions Judge, Kasur are set out below.

2. On 2nd November, 1977 case for the offences under section 302/307/34, P.P.C. for the murder of Muhammad Rashid and murderous assault on his sister Mst. Sharifan was registered against Haji Rehmat Ullah, his two sons Muhammad Haneef, and Shareef and one Shaukat son of Rehmat Ali under F.I.R. 253; at Police Station Pattoki, District Kasur. The accused were arrested next day of the incident. Muhammad Hanif, Muhammad Sharif and their mother Mst. Fateh Bibi had also during the incident received injuries comprising lacerated wounds, contusion and abrasions etc. Mst. Khurshid Bibi daughter of Muhammad Shafi respondent had sustained three injuries of which two caused by fire‑arm were found grievous in nature. Muhammad Shaft filed a private complaint in the Court of Magistrate at Chunian against the petitioners and two others including Khushi Muhammad complainant in the case of murder ending with the prayer that the case be sent to the Court of Sessions after taking cognizance under section 190(3), Cr.P.C. Learned Magistrate, however, proceeded with the case and after a preliminary inquiry passed an order that the accused be summoned and the file be sent to the Court of Sessions at Kasur where cross‑case of murder against the complainant side concerning the same occurrence was pending. Learned Sessions Judge proceeded to issue warrants for the arrest of the petitioners merely on the ground that learned Magistrate had held that a prima facie case had been made out against the accused. The petitioners filed application for quashment of proceedings (Criminal Miscellaneous 229‑Q of 1978) which was accepted. The entire proceedings held before learned Magistrate as well as the order of learned Sessions Judge for issue of process against the petitioners were quashed. The case was sent down to learned Sessions Judge with the direction that he will proceed with the case from the stage envisaged in section 200, Cr. P. C. record statement of the complainant and may issue process if he feels so advised or may postpone issue of process and either inquire into the case himself or direct inquiry to be made by a Magistrate before issuing the process in accordance with law. However, learned Sessions Judge inadvertently sent the case straightaway to Assistant Commissioner, Chunian directing him to hold fresh inquiry into the truth or otherwise of the allegations made in the complaint. On receipt of report from Assistant Commissioner, Chunian, learned Sessions Judge issued process against Muhammad Iqbal petitioner (2) to answer the charge under section 506, P.P.C. and processes were issued against the remaining three petitioners for the offences under section 307/324/34, P.P.C. Muhammad Shafi respondent herein filed revisional application for rectification of this procedural error in the proceedings which was repeated by learned Sessions Judge notwithstanding a clear direction in the order of this Court that he shall first record preliminary statement of the complainant under section 200, Cr.P.C. This revisional application (Criminal Revision 21 of 1979) was also accepted and learned Sessions Judge was directed again to follow the correct procedure viz. he should first examine the complainant under section 200, Cr. P. C. before proceeding to pass order for preliminary inquiry if any. The order was now complied by learned Sessions Judge. The complaint was again sent to the Magistrate for inquiry by means of order, dated 28th of February, 1979. On receipt of report from the Magistrate, learned Sessions Judge issued bailable warrants against the petitioners for the offences already noted in the foregoing lines. The petitioners appeared before learned Sessions Judge on 5th April, 1979 as ordered and also filed an application for bail. The application was on 24th April, 1979 accepted partly in that Muhammad Iqbal against whom process was issued for the offence under section 506, P. P. C. was allowed bail while the remaining petitioners were refused bail with the view that they had been summoned to answer the charge of attempted murder under section 307, P.P.C. which was punishable with the life imprisonment or for imprisonment for ten years. However, the petitioners slipped away when the case was called out for announcement of order whereat learned Sessions Judge cancelled the bail granted to Muhammad Iqbal and also ordered that Assistant Commissioner, Chunian be asked through a teleprinter message to arrange arrest of the petitioners.

3. Transfer of the case is claimed on the ground that the petitioners had appeared before learned Sessions Judge on 5th of April, 8th April, 15th April and 23rd April, 1979 but no proceedings were taken on these dates. On the last mentioned date copy of stay order passed by a learned Single Judge of this Court in Criminal Miscellaneous No. 83‑T of 1979 was presented to learned Sessions Judge by Khushi Muhammad complainant in the case of murder. Learned Sessions Judge got upset and directed the petitioners to appear before him next day when he cancelled their bail. The petitioners managed to slip away unnoticed by the police. The father of petitioners (1 and 2) applied for a certified copy of the order which was not supplied by Clerk of Court saying that the file was in the personal custody of learned Sessions Judge. Bail of the petitioners could not have been cancelled as initially bailable warrants were issued against them. The order cancelling the bail of the petitioners was a re‑action to the application for transfer of the case of murder from the Court of learned Sessions Judge and finally learned Sessions Judge was a friend of Muhammad Hanif an accused in the said case.

4. Learned Sessions Judge has in comments refuted the allegations that he was on 23rd of April, 1979 shown copy of order of High Court in application for transfer of case of murder or he had kept the file in his confidential box or he was a friend of Muhammad Hanif accused. Evidently, these allegations are false and mischievous. Perusal of the file reveals that on 5th of April, 1979 the proceedings in the application for grant of bail to the petitioners were adjourned to 15th of April, 1979 on a request made by counsel for the complainant (respondent) enabling him to prepare himself for arguments. The proceedings were further adjourned to 23rd of April, 1979 for production of copy of the order admitting the petitioners to bail in the previous proceedings which were quashed by this Court. Arguments were heard on that date and the order was announced next day. It will be seen that it is incorrect to say that no proceedings were taken on the above‑said dates. The record does not support the contention of the petitioners that the case was also fixed for 8th of April, 1979.

5. During arguments, learned counsel for the petitioners also referred to the proceedings for grant of bail to the accused in the case of murder. Haji Rehmat Ullah and Muhammad Hanif had applied for release on bail (Criminal Miscellaneous 887‑B of 1978), after their application was rejected by learned Sessions Judge on 22‑2‑1979. Haji Rehmatullah was on 20th May, 1978 allowed bail on the ground of old age but the application so far it related to Muhammad Hanif was rejected on 24th of June, 1978. Subsequently, Muhammad Hanif was allowed bail by learned Sessions Judge by means of order, dated 27th August, 1978 on the ground of non‑submission of challan. The remaining two accused in the case namely Sharif and Shaukat were' earlier allowed bail on 1st June, 1978 on the same ground. Khushi Muhammad filed two separate applications for cancellation of bail of the accused under subsection (5) of section 597, Cr.P.C. (Criminal Miscellaneous No. 2222‑37‑66‑B of 1978). These applications were accepted on 3rd of February, 1979 and petition for Special Leave to Appeal against the order in the said applications was rejected by the Supreme Court.

6. Learned counsel for the petitioners contended that the application must succeed for various improper and wrong orders passed by learned Sessions Judge in both cases had placed the accused in the case of murder in a position of undeserved advantage and had raised apprehension in the mind of the petitioners that they will not get a fair trial before learned Sessions Judge. I am not impressed favourably by this contention. The basis of application for transfer of criminal eases must be that the accused must have a reasonable apprehension that he will not receive a fair and unprejudiced trial. It is not sufficient merely to allege that the applicant would not get an impartial trial. The question as to what constitutes sufficient ground for transfer of case is not governed by any hard and fast rules and is a matter of opinion depending upon the inferences to be drawn from the facts which had happened. Orders wrong in law or improper orders passed in violation of rules of procedure have never been accepted as a valid basis for transfer of cases, unless the circumstances attending the passing of such orders are capable of raising a reasonable apprehension in the mind of the party that justice will not be done to him. There is a substantial thread of authorities to support this view. Reference be made to the cases Muhammad Ashraf v. Zafar Mahmood P L D 1967 Lah. 1130, Muhammad Bashir v. State and 4 others 1969 P Cr. L J 768, Muhammad Hussain v. The State P L D 1973 B J 10 and Muhammad Mustafa Abbas and others v. The State 1977 P Cr. L J Kar.

677. Reaction of improper or irregular order on the susceptibility of the party seeking transfer of the case should be kept in view but the, susceptibility should be of a reasonable person. Test to determine reasonable apprehension has been laid down by their Lordships in Muhammad Nawaz v. Ghulam Qadir and 3 others P L D 1973 S C

327. It was held by their Lordships what is a reasonable apprehension must be decided in each case with reference to the incidents and surrounding circumstances and 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 instance 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.

7. Wrong orders passed by learned Sessions Judge in the complaint case are attributable to sheer inadvertance and the order releasing the accused on bail in the case of murder was not manifestly or shockingly wrong. I, had also observed in my order accepting the applications for cancellation of bail of the accused in that case that delay in the prosecution of case as a ground for bail has to be weighed and adjudged in each case on its own material. There is no inflexible rule of universal application regardless of the facts of each case. Order for grant of bail to the accused on the ground of delay is not, therefore, always palpably wrong or unjustified in every case. Similar view was expressed by the Supreme Court in Petition for Special Leave to Appeal (No. 44 of 1979) directed against the order cancelling the bail of the accused it) the case of murder that inordinate delay in submission of challan could furnish a valid ground for grant of bail but before such delay is accepted the Courts are to look into the circumstances which have caused the delay. It will be premature at this stage to offer comments on the order rejecting the bail of the petitioners against whom bailable warrants were issued in the first instance. Therefore, the contention, that these orders had shaken confidence of the petitioner in the impartiality of the learned Sessions Judge does not have any substance in it. Lastly, it was also contended on behalf of the petitioners that learned Sessions Judge had on a query made by this Court reported falsely that the case was likely to be fixed for trial in its turn within a few days. This report was designed at providing a justification to the accused for their continuance on bail. As I see the contention is without any basis. To order transfer of case without a sufficient cause will be tantamount to throwing gratuitous slight on the Presiding Officers. The application is rejected. I should hope earnestly that learned Sessions Judge shall not feel prejudiced by this application and shall hold evenly the scale of justice which he is obliged to do. M. Y. H. Application rejected.