P L D 1978 Lahore 235 (PLP)

4. The petitioner did not take any notice of this threat, nevertheless he was put on guard and in order to make sure whether there was any truth id this, he thought of some device. Accordingly it was arranged that the wife of the petitioner along with one Muhammad Boota would go to village Halloke where they would contact Nazir in order to verify as to who had access to the learned trial Judge. It was decided that they were to pose themselves as close relatives of the accused. Both of them then left for Halloke. They could not contact Nazir, but found Piran Ditta, his father, and requested him if be could do something for the acquittal of Bashir Ahmad. Piran Ditta promised to help them and said that for that matter, services of Arif Hussain were necessary because he was not only the Karinda of the trial Judge but was also a distant relation. In this meeting the name of a shoemaker of Halloke was also mentioned. He too was introduced to the party, who promised to help the accused either himself or through Arif Hussain. The shoe-maker said that one of them would go to the Court of the Additional Sessions Judge on 7-6-1977 and would settle everything. According to the petitioner 7th June 1977 was faxed as the date for commencement of the trial. It is alleged by the petitioner that the shoe-maker did go to Lahore, called upon the trial Judge in his retiring room, stayed with him for some time and when came out told Mst. Rashidan and Muhammad Boota that everything had been arranged and he had taken a promise from the trial Judge that he would do whatever was possible to acquit the accused. The party then asked the shoe-maker if some money was required for this, but they were told that Arif Hastain would receive the same after the acquittal of the accused.

5. The aforesaid information was passed on to the petitioner by his wife and Muhammad Boota. On coming to know of this development, the petitioner lost all faith in the trial Judge and moved this Court by means of this petition for transfer of the case. The name and particulars of the shoe-maker had not Keen mentioned in the petition. It was only on 3-7-1977, when the learned counsel submitted that the shoe-maker was Shahabu and resided in Sadhoke, that my learned brother M. A. Zullab, who was dealing with this petition, summoned the shoe-maker in order to record his statement. Twice the case was adjourned because he could not be served. As the High Court closed for long vacation, this case was transferred to me. On 10-7-1977, I issued notice to the State and ordered the Station House Officer, Police Station, Kahna to appear before me on 11-7-1977. On 11-7-1977, Muhammad Zubair, S. H, O. appeared before me and he was ordered to take the warrant personally for the service on Shahabu. On the neat date, the S. H. O. produced the aforesaid shoemaker. Before recording his statement I asked his name and he said that he was Mehtab Ali son of Bagh Ali and that he was not known as Shahabu. The petitioner was then asked as to whether he was the same person whose reference had been made in the petition as a shoe-maker and who had met his wife and Muhammad Boota. Both Mst. Rasbidan and Muhammad Boota replied in the affirmative. Mehtab Ali was accordingly put on oath and his statement was recorded by me. He admitted that he was cobbler by profession. Ch. Inayatullah Cheema owned come agricultural land in the village where he lived. He said that he was a destitute ; had no source of livelihood and the Judge out of sheer pity and fear of God used to help him as he was a patient of tuberculosis. He said that he did not know any Bashir Ahmad accused in a murder case nevertheless it was admitted by him that he did come to Lahore on 7-6-1977 in connection with his X-Ray. He denied to have ever met Mst. Rashidan wife of the petitioner. He said that he did not know how she is related to the petitioner. Before I could conclude his statement, one Muhammad Boota stood up and stated that he knew some important facts pertaining to this incident and that his statement should be recorded. He deposed on oath that he along with his aunt Mst. Rashidan had met Mohtab in village Sadhoke. Both of them pretended to be the relatives of the accused and requested Mehtab for help in getting the accused acquitted. Mehtab promised to do the needful. He was told the next date of hearing. Accordingly, Muhammad Boota with his aunt came to the Court of the Additional Sessions Judge on 7th June 1977. They found Mehtab there. In their presence he went inside the retiring room, stayed there for some time and when came out, he told that everything had been arranged and that the accused shall be acquitted. Mahtab was asked whether any money was required for that. He said not at the moment till one Atif arrived. Muhammad Boota then said that neither he nor his aunt ever met Arif. While concluding his statement, the witness said that on the last date of hearing (the exact date he did not remember) he was present in the Court of the Additional Sessions Judge when he suggested to the parties that they should compromise. I may observe here that Muhammad Bashir accused has been cited as one of the respondents. The trial has not yet commenced. Therefore, I did not think it necessary to issue any notice to him in order to beer him, because even if the case is to be transferred without granting a formal hearing to the accused, no prejudice is likely to be caused to him.

6. At this stage I thought it proper to call for report and comment of the Additional Sessions Judge. I, therefore, directed him to submit his report in the light of the statements of the two persona. In compliance with the order of this Court a report was submitted by the trial Judge.

7. In his comments, the Additional Sessions Judge submitted that he did not own any land in village Halloke nor did he know Mgt. Sabran sister of Bashir Ahmad accused. Similarly, he denied any connection with Arif Hussain and said that he was not his manager nor was he aware of any connection between Arif Hussain and Mst. Sabran or Bashir Ahmad accused. However, it was admitted by the learned trial Judge that his wife and her sister Inherited some land in village Sadhoke. He also admitted to have known Mehtab Ali and said that he had been helping him off and on because he was a tuberculosis Patient and was a destitute. He got him admitted in Gulab Devi Hospital from where he had been getting his X-Ray. The learned Judge further, admitted that l "Some time back he came to me for fresh X.Ray. I sent him to Mayo Hospital. Lahore and procured his X-Ray from there. I wonder how this destitute can prevail upon me and deter me to perform my duty as a judicial officer." The allegation of Muhammad Boota that he had asked the parties to compromise was denied by the learned Judge. He concluded his report by denying the allegations being incorrect and baseless.

8. My own impression about Mehtab Ali is that he is a sick person and was not keeping good health. He appeared to be a patient of tuberculosis. Even otherwise his condition was such that he could rightly be taken as a destitute person and I have no reason to doubt the learned trial Judge that he was helping him out of sheer pity and for fear of Almighty God. Undoubtedly this is a noble cause, but the position of a judicial officer, especially that of the rank of an Additional Sessions Judge, who is to deal with Sessions cases where question of life and death of an accused person is involved is very sensitive. Therefore, be must not even act in a manner which could lead to any speculation. It is admitted by the trial Judge that Mehtab had come down to Lahore for some help butt that was in connection with his X-Ray. In his comments he had not specifically denied that it was on 7-6-1977. The mere fact that Mehtab had been granted an audience by the trial Judge, though in his Retiring Room, was sufficient to create some sort of doubt in the mind of the party that they would not get a fair and impartial trial from the trial Judge. The test as to whether a party is to get a fair and impartial trial is to be judged in the light of the principle laid down in Muhammad Nawaz v. Ghulam Kadir (PLD 1973SC327), where Chief Justice Hamoodur Rehman (as he then was) observed; " We fully endorse the summing up of these principles by the High Court in the case of Rahim Bakhsh P L D 1971 Lah. 517, mentioned above, namely, that the transfer of a case from a Court of competent jurisdiction is justified only if titers 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 ref 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.? In view of the above I am inclined to agree with the learned counsel for the petitioner that in tire light of the facts stated above, the petitioner lead lost confidence: in the trial judge. Subsequently no amount of canvassing that Mehtab Ali had simply come to see the Judge in connection with his personal matter could restore that confidence. In this connection I may observe that although it is important that justice must be done, nevertheless it is mote important that it must be sewn to have been done. For that matter, it is now necessary to transfer the case from the file of the Additional Sessions Judge to some other Court of competent jurisdiction. I, therefore, order accordingly. It would be better if this case is tried by the learned Sessions Judge himself' bat in case he is too busy, it should be entrusted to some other Additional Sessions Judge for trial and disposal in accordance with law. While concluding, I may observe that in this petition, reference was also made to another Sessions case decided by Mr. Inayatullah Cheema, wherein the brother of the petitioner was murdered. This case resulted in the acquittal of the accused Met. Anwar, but for the decision of this petition I do not attach any importance to that ground. S. A. H. ????????????????????????????????????????????????????????????????????????????????? Case transferred.