2004 PLP 1032 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Inayat-ullah Khan petitioner has filed instant writ petition to call in question the impugned order dated 4-1-2003 passed by learned Judge Accountability Court No.4, Peshawar, whereby the application of the petitioner moved on 23-11-2002 for the amendment of charge under section 227, Cr.P.C., was dismissed. Shortly narrated the facts are that the petitioner was arrested by the NAB Authorities on 30-10-2000. He was convicted and sentenced by the Accountability Court on 30-10-2001. On appeal a Division Bench of this Court set aside the conviction and sentence and remitted the case to the trial Court for holding de novo trial in Criminal Appeal No. 13 of 2001, decided on 7-10-2002. On 4-11-2002 the Additional Deputy Prosecutor General submitted an amended reference in the Accountability Court and the matter was adjourned to 12-4-2002 for framing the charge. On 12-11-2002 the petitioner was given charge-sheet. On 23-11-2002 the petitioner submitted an application for the amendment of charge under section 227, Cr.P.C. The application was rejected which has given rise to the filing of the present writ petition.

2. Mr. Sanaullah Khan Gandapur, Advocate, learned counsel for the petitioner contended, inter alia, that the amended reference contains the previous allegations, wrong calculations and unwarranted reference to co-accused Hidayatullah Khan; that the charge is violative of the verdict of this Court given in Criminal Appeal No.13 of 2001 decided on 7-10-2002; that the observations contained in para. 114 of the aforesaid judgment have been totally ignored by the learned Accountability Court wherein it has clearly been laid down, that the petitioner could not be held accountable for the properties and assets acquired prior to 1-1-1985 and could also not be held answerable to properties, assets acquired, Bank accounts maintained and vehicles purchased after his retirement i.e. after 14-12-1985, while he was not holding any public office and that the amended reference made and the charge framed would make not a slight difference between the allegation of previous proceedings and trial that stands set aside. Concluding the arguments, the learned counsel prayed for transfer of the case submitting that the petitioner has lost faith in the trial Court and entertains legitimate apprehension in his mind that the learned Court is "biased" and he will not get fair and impartial treatment.

3. The Court has a large discretion to alter or add to a charge framed under the Code. The Court is competent to frame proper charges for offences disclosed in the allegations and in proper cases even alter it at any stage of the trial in accordance with evidence, provided no prejudice is caused to the accused. There is no question of prejudice when the case is still at the stage of charge. Where a charge is properly framed but it is found after taking evidence that it is groundless, the Court is not prevented from striking out such charge. A charge can be amended or altered or added at any time before judgment is pronounced. Muhammad Afzal v. The State 1990 SCMR 267; Nadir Shah v. The State 1980 SCMR 402 and Muhammad Mehmood Ahmad v. The State 1987 PCr.LJ 312 Karachi. In the instant case, we find that the amended reference is within the spirit of the judgment of this Court whereby the reference was remanded to the Account ability, Court for trial afresh. The reference has been remanded for de novo trial and the Accountability Court is not to be biased and influenced by any observation made by his Court. No prejudice seems to have been caused to the petitioner in the instant case.

4. 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. Transfer of a case pending in a competent Court could not be claimed as matter of routine or at the wish of any of the parties unless it was apparent on the face of the record that party seeking transfer could not get fair and just treatment/trial. In Muhammad Arshad v. The State 1997 SCMR 949, it was observed:-- "In order to make out case for transfer, clear and cogent averment should be made which may lead to the conclusion that the conduct of the trial Judge is not proper and is prejudiced. The transfer will be justified if there is a reasonable apprehension in the mind of a party that the Court would not be able to act fairly and impartially in the matter. Such impression should not be based on apprehensions or presumptions but should be substantiated with fact which tarnished the impartiality of the Court."

5. In the instant case, we feel that the apprehensions of the petitioner are ill founded and no good ground has been made for transfer of the case. Haji Khawar Saleem v. The State 2001 SCMR 905.

6. In the result and for the foregoing reasons, finding no substance in this writ petition we dismiss the same. H.B.T./29/P Petition dismissed.