P L D 2005 Peshawar 105 (PLP)

NASIR‑UL‑MULK, C.J.‑‑‑The application has been filed by Abdul Wahab and others for the transfer of the Civil Appeal No.37/13 of 2004 and Civil Appeal No.36/13 of 2004 respectively titled Ghulam Muhammad and others v. Fazli Rahim and others and Fazli Rahim v. Abdul Wahab from the Additional District Judge Malakand of Dargai. Notice of this application was given to the otherwise Ghulam Muhammad and others. Meanwhile preliminary enquiry was ordered to be conducted by the Member Inspection Team regarding some of the allegations made in the application against Reader of the said Court. That enquiry is still pending.

2. The application was hotly contested by the counsel for the respondents and it was argued that maligning Judicial Officers of baseless allegations be discouraged in the interest of justice and to safe guard the Judicial Officers against blackmailing by unscrupulous people. The learned counsel has also referred to Para‑4 of the application for transfer in which it is stated that the ‑counsel for the applicants. Mr. Bashirullah Khan Advocate had divulged to the applicants that they will not be able to get justice from the Presiding Officer of the Court and advised them to move an application for transfer of the appeals. The learned counsel for the respondents argued that the Advocate has not filed affidavit in support of the application.

3. The learned counsel representing the applicants submitted that the said counsel was approached by the applicants but he had declined to furnish an affidavit on the ground that he would not like to get himself involved, in such matters. On the merit of the case the learned counsel for the applicants argued that in view of the assertions made, it would be in the interest of both the parties that the case be transferred to another Judge.

4. The main allegation in the application is directed against Reader of the Court of Additional District Judge where two appeals are pending. Preliminary enquiry has already been ordered in that respect. With regard to Para‑4 of the application, it is indeed unfortunate that a counsel should advise his client to move the High Court for the transfer of a case on the ground that he apprehends that the Judicial Officer would not decide the case impartially and fairly. The counsel should have had the moral courage to furnish an affidavit in support of his advice and state reasons for his apprehension. If the said counsel was not ready to furnish such an affidavit then the learned counsel appearing for the applicant in this case should not have mentioned the apprehension and advice of Bashirullah Khan Advocate.

5. Although apart from Para‑4 of the application there is no allegation against the Additional District Judge however, in view of the situation that has developed during the pendency of the present application it would be in the interest of justice as well as parties that the case be transferred to another Judge. The only other Judge competent to hear the appeal is the District and Sessions Judge, Malakand at Batkhela. The learned counsel for the respondents had also argued that the applicants are delaying the disposal of the appeals. In this view of the matter, while directing the transfer of the two appeals to the District and Sessions Judge, h1alakand at Batkhela, the parties shall appear before the said Court on 10‑1‑2005 on which date arguments on the case shall be addressed. The learned counsel for the parties have noted the date as well as the direction that the arguments in the appeals would be heard on the said date. H.B.T./345/P Order accordingly.