1. ' The petitioner, Gul Muhammad son of Fateh Muhammad, who is the first informant in the case of State v. Sikandar and others under sections 302, 307, 147 and 114, P. P. C. Pending in the Court of Second Additional Sessions Judge, Larkana, prays for transfer of the file of the case from the trial Judge to the Additional Sessions Judge, Larkana, on the ground that he would not get even handed justice at the hands of the trial Judge.
2. ' The grounds in support of the Transfer Application are that one Noor Nabi Junejo, who is said to be a near relation of the trial Judge, is found sitting in the Chamber of the learned Judge on every date of hearing, and the mother of accused Riaz, who is a Junejo by caste, is also seen visiting the house of the learned Judge. It is asserted that the learned Additional Sessions Judge has also shown an unwarranted haste in dealing with the present case, while several older cases are yet awaiting trial. It is further alleged that on petitioner's complaint, the Assistant Public Prosecutor, dealing with the prosecution case, was changed and another Assistant Public Prosecutor was appointed, and this change of the prosecutor of the case also annoyed the learned trial Judge. It is finally urged that the accused persons have openly announced in their village that "the necessary arrangements have been made, and they are sure of their acquittal".
3. ' The Additional Sessions Judge trying the case in his Report submitted to the Court has vehemently denied the allegations levelled against him, and he has stated that he has no relation by the name of Noor Nabi Junejo nor any one by the name of Noor Nabi Junejo has ever attended his Chamber.
4. He has also shown ignorance that the mother of accused Riaz is Junejo by caste and has further asserted that no lady has approached him or visited his house in connection with any case pending in his Court. Learned trial Judge has also vehemently denied the assertion that he was annoyed by the change of the Assistant Public Prosecutor. According to him, this allegation is totally misconceived.
5. ' Mr. Akhtar Ali Kazi, learned counsel appearing for the accused has produced the case-diaries from 16th October, 1978 onwards which, on the other hand, belie the allegation that the learned trial Judge has shown any untoward haste in dealing with the case. On the contrary, he has been adjourning the hearing even though on certain occasions prosecution witnesses were present.
6. ' Mr. Abdul Karim Lakhan has, however, drawn my attention to the order passed by the learned trial Judge on 20th September, 1978 after the case was put off to 16th October 1978 on the earlier date of hearing fixed for 16th September, 1978. This order reads as follows : "The case is fixed for hearing on 16th October 1978. Issue usual intimation to all concerned."
7. ' According to Mr. Abdul Karim Lakhan, there was no necessity whatsoever to make the order dated 20th September, 1978, when the case was to come up again on 16th October, 1978.
8. I might mention here that reference to this point has been made by Mr. Abdul Karim Lakhan for the first time during the course of hearing, and this ground was not even mentioned by the petitioner in support of the Transfer Application. Mr. Abdul Karim Lakhan, however, explains that he has noticed this point for the first time from the papers produced by Mr. Akhtar Ali G. Kazi, and the petitioner being unaware of this aspect of the case had no occasion to raise this point as a ground in support of the Transfer Application.
9. ' I would not like to exclude this new point being raised at the stage of argument, for, it seems that the petitioner was not aware of what has now been disclosed from the record of the case.
10. ' Mr. Akhtar Ali G. Kazi has, however, pointed out that on 16th September, 1978, no actual hearing of the case was to take place as that date was fixed only as a formal date for the purpose of issuing further remand of the accused for Jail custody. He has supported this assertion by making reference to earlier dates of hearing e.g., 10th June, 1978, 23rd July, 1978 and 31st July, 1978, which were also fixed for the same purpose. According to Mr. Akhtar Ali G. Kazi, the learned trial Judge passed the order dated 20th September, 1978 for the purpose of hearing of the case and directed that the summons be issued to all the concerned persons, and no motives could be attributed to the learned trial Judge other than that he wished to proceed with the case in the normal course.
11. ' After having gone through the case diaries and the record of the case, I feel that Mr. Akhtar All G.
12. Kazi has satisfactorily explained the making of the order by the learned trial Judge on 20th September, 1978. I also find no force in any of the grounds raised by the petitioner in support of the Transfer Application' since the allegations levelled against the learned trial Judge have no support beyond the word of the petitioner.
13. ' Mr. Abdul Karim Lakhan, at this stage, submits that the fact that the petitioner has taken the trouble of making this Transfer Application is itself the proof of the fact that there are reasonable apprehensions in his mind that he would not get a fair justice from the trial Court, and the case should, therefore, be transferred.
14. ' I regret I cannot agree with this plea, for, if that principle be accepted, then any party has only just to say, by the word of mouth, that he distrusts the Magistrate who would try him in the ordinary course in order to get his case transferred, and he can go on doing so indefinitely. This point was noticed by Hallifaz A. J. C. In Abdullah v. The Emperor (1) and his Lordship after rejecting it observed that the assertion that the accused has a reasonable apprehension that he will not receive a fair trial, like any other allegation, must be examined and found true before it can be accepted. Dealing with the principles on which criminal cases are to be transferred, Hamoodur Rahman, C. J. In Muhammad Nawaz v. Ghulam Kadir (2) observed that 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. His Lordship further observed that "what is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances ; and the Court must endeavor, 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 regard to his state of mind and the degree of intelligence possessed by him, Nevertheless, it is not every incident regarded as unfavorable 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."
15. ' If, therefore, the mere plea that the petitioner has taken the trouble of making a Transfer Application is by itself to be treated as the proof of the fact that he has a reasonable apprehension that he will not receive evenhanded justice from the trial Judge, or, Magistrate, then even a totally B frivolous application for transfer of the case will have to be accepted, and a licence would thus be available to any party to the proceedings to drag on the trial of the cases for a number of years. I therefore do not consider, this plea as a valid ground for the transfer of the case.
(1) 27 Cr. I.. J 26 (2) PLD 1973 SC 327 ' For these reasons, I find no merit in this Transfer Application, and it is accordingly dismissed.