1985 P Cr (PLP)

Date of hearing: 28th April, 1983. Petitioner who is one of the six accused in a murder case pending in the Court of Ch. Anwar Ali, Additional Sessions Judge, Faisalabad has filed this petition under section 526, Cr.P.C. for transfer of the said case to some other Court of competent jurisdiction. It was alleged by the petitioner that the trial was to commence on 13‑4‑1985 and Syed Muhammad Aslam, Advocate, counsel for the accused moved an application on 11‑4‑1985 before the learned Additional Sessions Judge, Faisalabad for adjournment on the ground that he was already busy in a murder trial before the learned Sessions Judge at Toba Tek Singh. Learned Additional Sessions Judge declined to adjourn the case with the observation that only formal witnesses shall be examined on 13‑4‑1985 and the counsel should join the proceedings later. When the case came up for hearing on 15‑4‑1985, defence counsel was unable to appear as he was not yet relieved of the murder trial at Toba Tek Singh. Petitioner and his co‑accused made a written request for adjournment so that their counsel may be able to appear or to enable them to engage some other counsel. Learned Additional Sessions Judge, according to the petitioner, asked the accused that "they should arrange a counsel to defend them by 11 ‑00 a.m.". This was not possible with the result that the petitioner and his co‑accused were put to trial without any defence counsel and "examination‑in‑chief of all the witnesses took place in the absence of the counsel of the petitioner and his co‑accused". It was further alleged that the witnesses examined on 15‑4‑1985 included Shan Ilahi P.W.13 whose name was not even mentioned in the calendar of witnesses and copy of whose statement was also not provided to the accused under section 265, Cr.P.C. Precise complaint of the petitioner was that the undue haste shown by the learned Additional Sessions Judge in proceeding with the trial of the case in the absence of the defence counsel "has caused grave concern and apprehension in the mind of the petitioner and his co‑accused, that even in future they will not be dealt with fairness and in accordance with law at the hand of Ch. Anwar Ali, the learned Additional Sessions Judge, Faisalabad."

2. This petition was placed before me for motion hearing on 24‑4‑1985. After hearing the learned counsel for the petitioner, I sent for the comments from the learned Additional Sessions Judge through a special messenger as I was informed that the case before the learned Additional Sessions Judge was fixed for 30‑4‑1985. Hearing of this petition was adjourned to 27‑4‑1985 on which date the requisite comments were submitted.

3. In his comments, learned Additional Sessions Judge admitted that on 11‑4‑1985 Syed Muhammad Aslam Shah, Advocate, counsel for the accused appeared before him with an application for adjournment of the case "to some other longer date because he was busy in the Court of learned Sessions Judge, Toba Tek Singh". Learned Additional Sessions Judge, however, explained that the learned defence counsel took back the application as it was agreed that on 13‑4‑1985, only formal witnesses would be examined and the junior of Syed Muhammad Aslam Shah, Advocate, "will cross‑examine those formal witnesses, if necessary". Defence counsel was further assured that owing to his engagement at Toba Tek Singh, case would not be fixed on 14‑4‑1985 but would be taken up on 15‑4‑1985. It is further stated in the comments that as per the agreement, formal witnesses were examined on 13‑4‑1985 in the presence of the junior of Syed Muhammad Aslam Shah, Advocate who also cross‑examined P.W.3 and P.W.7. Case was thereafter adjourned for remaining evidence to 15‑4‑1985 on which date Syed Muhammad Aslam Shah, Advocate again did not turn up. Learned Additional Sessions Judge, therefore, recorded only examination‑in‑chief of 5 P.Ws. and adjourned the case to 16‑4‑1985 for cross‑examination of those witnesses. Doctors and Investigating Officer were also summoned for 16‑4‑19865. Learned Additional Sessions Judge also reproduced in his comments' the order sheet, dated 15‑4‑1985 which is as follows:‑ "Statements of five P.Ws. recorded. The accused have filed an application that today again their counsel is not present and has gone to Toba Tek Singh for perusal of some other case. The cross‑examination of all the five P.Ws. has been reserved and the accused are directed to produce their counsel tomorrow without fail. To come up on 16‑4‑1985 for cross‑examination of these P.Ws. Both the doctors and the Investigating Officer should be summoned for tomorrow."

4. As regards the petitioner's allegation with respect to examination of Shan Ilahi P.W., 'learned Additional Sessions Judge admitted that the name of this witness was not mentioned in the calendar of witnesses but he explained that on an application filed by complainant Safdar Ali on 27‑2‑1983 which was duly forwarded by D.D.A., Shan Ilahi and Muhammad Rafiq (both marginal witnesses to the recovery memo. of the crime weapon recovered from Muhammad Javaid accused) were allowed to be summoned and produced. Learned Additional Sessions Judge further stated that on 20‑3‑1985, all the accused were present in Court when "all the relevant copies including the copies of the statements of Muhammad Rafique and Shan Elahi were provided to them under their signatures." It further transpires from the comments that on 16‑4‑1985, the accused appeared in Court alongwith Syed Muhammad Aslam Shah, Advocate and Ch. Muhammad Anwar Advocate and filed an application for adjournment on the ground that they wanted to move a transfer application in the High Court. Learned Additional Sessions Judge accordingly adjourned the case to 30‑4‑1985 to await the orders from this Court. Learned Additional Sessions Judge has also pointed out in his comments that Ch. Muhammad Anwar, Advocate who was a retired District and Sessions Judge and was ‑a senior Advocate was also counsel for the accused and appeared in Court on 16‑4‑1985. Learned Additional Sessions Judge expressed the feeling that "the accused wants to prolong the proceedings of this case for some other motive because on 15‑4‑1985 the Deputy Registrar, Lahore High Court, Lahore had telephonically enquired as to how many witnesses have been recorded in this case uptil 15‑4‑1985. From this I can only infer that some other matter of the accused is pending in the Lahore High Court and they want to delay the proceedings of this case till the disposal of any such matter, if at all it is pending."

5. I have heard the learned counsel for the petitioner. Mr. Rafique Ahmad Bajwa, Advocate holding watching brief for the complainant has also been assisting the Court. Learned counsel for the petitioner has submitted that although the petitioner does not allege any bias or prejudice in the mind of the learned Additional Sessions Judge yet he and his co‑accused, have a genuine apprehension that they will not get fair trial at the hands of the learned Additional Sessions Judge now seized of the case. Circumstances which, according to the learned counsel, have created the aforesaid apprehension in the mind of the petitioner and his co‑accused are:‑ (i) that the learned Additional Sessions Judge allowed the application of the complainant for summoning Shan Ilahi as a witness without notice to the accused; (ii) copy of the statement of Shan Ilahi P.W. before the police was not provided to the petitioner and his co‑accused; and (iii) that the learned Additional Sessions Judge did not adjourn the case and proceeded with the trial in the absence of the defence counsel who was busy in another Sessions trial at Toba Tek Singh . 6, As regards the allegation that Shan Ilahi P.W. has been allowed to be summoned and produced as a witness without notice to the accused, it may be pointed out that this allegation as such has not been made in the petition for transfer with the result that the learned Additional Sessions Judge could not comment thereon. However, perusal of the comments shows that accused were summoned, for 27‑2‑1985 for supply of copies to them. Out of six accused, Muhammad Suleman accused was reported to have died, Muhammad Javaid accused was stated to be in Jhang Jail, Muhammad Irshad accused was reported to be employed in Air Force at Sargodha and the remaining three accused namely Mi4hammad Ismail, Abdul Sattar and Muhammad Ashfaq were present in Court on bail. On the same date i.e. 27‑2‑1985, application filed by the complainant for summoning Shan Ilahi and another as P.Ws. came up, before the learned Additional Sessions Judge who allowed the same by an order passed on that very date. Thus, the order summoning Shan Ilahi as P.W. appears to have been passed in the presence of the accused present in Court on that date. Assuming, however, that the order in question was passed without notice to the accused and for that reason it was illegal and improper, that per se does not provide a ground for transfer of the case. It was held in Muhammad Ashraf v. Zafar Mahmood P L D 1967 Lah. 1129 that "the fact that a Magistrate has passed an order, which has been found, to be unsustainable, does not in itself provide a ground for transfer of a case, but where the circumstances attending the passing of such an order are capable of raising an apprehension in the mind of a party that it is not likely to receive a fair deal in that Court, the interests of justice demand, that the case should be withdrawn from that Court". Reference in this behalf may also be made to Nazir Ahmad and 3 others v. The State N L R 1980 Criminal Lah. 785 wherein it was held that "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."

7. As regards the second allegation of the petitioner that copy of the statement of Shan Ilahi P.W. before the police was not provided to the accused, suffice it to observe that it has been controverted by the learned Additional Sessions Judge in his comments by stating that "on the next date i.e. 20‑3‑1985 all the accused were present in the Court and all the relevant copies including the copies of the statements of Muhammad Rafique and Shan Ilahi were provided to them under their signatures". Learned counsel has placed on record the affidavit of the petitioner to contradict the position taken by the learned Additional Sessions Judge but I am not persuaded to disbelieve the categorical statement of the learned Additional Sessions Judge merely on the basis of the affidavit of the petitioner. However, even if assertion of the petitioner is taken to be correct, omission being rectifiable as the accused could ask for the supply of the requisite copy, cannot be a valid and legitimate ground for transfer of the case. Reference may be made to Rana Asif Ali v. The State 1968 P Cr. I. J 1195.

8. As regards the last allegation mentioned above, question which requires consideration is whether facts alleged in the petition for transfer coupled with those disclosed in the parawise comments submitted by the learned Additional Sessions Judge can give rise to a reasonable apprehension that the petitioner and his cu‑accused will not receive a fair treatment at the hands of the learned Additional Sessions Judge. Law is very well‑settled that the Court should not make an order for transfer of a case unless it is satisfied on the facts disclosed that there arises a reasonable apprehension that the applicant may not have a fair and impartial trial. Refer to Amar Singh v. Sadhu Singh 1925 Lah.

361. Principles governing transfer of case under section 526, Cr.P.C. have been summed up in Muhammad Nawaz v. Ghulam Kadir and others PLD 1973 S C 327 in the following words:‑ "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 reasonable man might justifiably be expected to have." Again in the case of Nazir Ahmad referred to above. N L R 1980 Criminal Lah. 783, this Court while repelling the contention that improper orders passed by the learned Sessions Judge "had raised apprehension in their mind that they would not get a fair trial before the learned Sessions Judge," observed that "the basis of application for transfer of criminal cases 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." It was further held that "to order transfer of cases without a sufficient cause will be tantamount to throwing gratuitous slight on the Presiding Officers."

9. Now in the present case, uncontroverted facts are that the trial of the murder case was fixed before the learned Additional Sessions Judge, Faisalabad on 13‑4‑1983 when the formal witnesses were examined according to the agreed arrangement. No objection admittedly was taken by the accused to the examination of the formal witnesses. In fact, two witnesses viz. P.Ws. 3 and 7 were also cross‑examined by the junior counsel. Case was then adjourned to 15‑4‑1985 and this adjournment was also made in pursuance of the agreed arrangement and evidently with a view to accommodate the defence counsel. On 15‑4‑1985, Syed Muhammad Aslam Shah, counsel for the accused did not turn up. Learned Additional Sessions Judge no doubt did not adjourn the case but he only recorded examination‑in‑chief of five P.Ws. and reserved their cross‑examination and adjourned the case to 16‑4‑1985 and directed the accused to produce their counsel on 16‑4‑1985 for cross‑examination of P.Ws. examined on 15‑4‑1985. Defence counsel is shown to have appeared on 16‑4‑1985 but he instead of proceeding to cross‑examine the witnesses examined on 15‑4‑1985 chose to move an application for adjournment on the ground that the accused wanted to get the case transferred. These undisputed facts, to my mind, clearly show that the learned Additional Sessions Judge took no steps or action which could cause any prejudice to the accused. In these circumstances, I am not satisfied that the petitioner and his co‑accused could have any legitimate cause for grievance or apprehension that they will not get fair trial before the learned Additional Sessions Judge. Test of reasonableness of apprehension laid down by the Hon'ble Supreme Court in the afore‑referred case of Muhammad Nawaz v. Ghulam Kadir does not appear to have been satisfied in the present case. Upshot of the above discussion is that no case is made out for transfer of the case. This petition, therefore, fails and the same isle dismissed in limine. M. Y. H. Application dismissed.