1. This is an application made by Abdul Hakim Khan son of Ghulam Nabi, who is being tried by Mr. Dargahi L. Mangi, Additional Sessions Judge, Shikarpur, alongwith others for transfer of Sessions Case No. 77 of 1979, State v. Abdul Hakim and others under section 302, P. P. C. And its counter-case State v. Rasool Bux and others under section 307, P . P. C.
2. The grounds on which the transfer is sought are as under:-
(1) That the hearing of bail application filed on his behalf on 26November, 1979, was being deferred and had not been disposed of.
(2) That on 7th January, 1980 when the applicant who is an under-trial prisoner and had, been brought to Court in custody, had requested for early disposal of his bail application, the learned Judge lost his temper and in a harsh and highly insulting attitude bad made reply in the following words, "I will decide the applica--tion whenever I like".
(3) That on 9th April, 1980 the first informant in the case against the applicant had made an application to the trial Judge making what the applicant has described as false and unfounded allegations against the District Public Prosecutor who was incharge of the prosecution in the case, for withdrawal of the case from his charge, the learned trial Judge had without notice to any one ordered that Mr. Maula Buksh A. P. P. Assisted by the Advocate engaged by the first, informant should conduct the prosecution in the case. The applicant submitted that since the learned Judge was not competent to put law officer of his choice to conduct prosecution but had passed such peremptory order at the instance of the first informant the aforesaid action on the part of the trial Judge had caused apprehension in his mind that the learned Judge will not do justice to him.th The transfer of criminal cases is provided for in section 526 of the Criminal Procedure Code, 1898 the relevant provision of which applicable to the instant case reads as under:- "526. High Court may transfer case or itself try it-
(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto,"
3. With reference to ground No. 1, taken on behalf of the applicant it is admitted in comments of the learned Additional Sessions Judge, Shikarpur that the bail application was received by him from the Sessions Judge. Shikarpur for disposal on 11th December, 1979 and copy of diary furnished by him shows that it was fixed for hearing on at least 17 different dates but is yet pending decision. It is true that reasons have been given for every adjournment, but since it is not necessary to prove actual bias in the mind of the Court, it would not serve any purpose to consider the reasonableness of the grounds for adjournments. The relevant consideration is apart from susceptibilities of the accused, whether such postponement of the decision of his bail application could reasonably lead to the calculation in his mind amounting to real apprehension that he will not be fairly treated at the trial.
4. While a person is in jail custody an application for bail may be moved any time and can be repeated without restriction specially as and when there is any change in the circumstances of the case against him. Repeated postponement of hearing of bail application, for instance due to non- availability of papers such as post-mortem pates and report, though without actual bias on the part of the Court, can give impression to a person like the applicant in the instant case, as if his prayer for consideration of his application was being postponed as a favour to the antagonistic party in the counter-case, specialty as it is stated that from among the accused in the counter- cases he alone has not been granted bail.
5. With regard to ground No. 2, the learned Judge has denied the allegation of use of words quoted and the entire incident pointing out that the accused could not have been produced on 7January, 1980 as there was no hearing on the case which was fixed for hearing on 7th January, 1980.
6. Mr. Ghiasuddin Baloch, the learned Advocate for the applicant argued that the wrong date had been mentioned due to a typing mistake. He has further argued that in the last but one pare of the comments the learned Judge has shown his anger with the applicant. The pare reproduced reads as under:-- "In the light of above comments and record, it is evident that the allegations levelled by the accused/ applicant are proved to be false and the affidavit filed by accused/applicant to that effect is also false and as such it requires legal action against the accused/applicant to deter him in future to file such false affidavit."
7. It is contended by the learned Advocate for the applicant that in view of the above remarks recommending that action be taken against the applicant for false allegations and for filing false affidavit the apprehension of the applicant that he will not get fair trial has become more strong and therefore, the application is liable to be granted on this around alone.
8. With regard to ground No. 3, is the comments the learned Additional Sessions Judge has explained that he passed the order on the application of the first informant as Mr. Maula Baksh, is the A. P. P.
9. Attached to his Court. However, the power to appoint a Public Prosecutor or to assign g him particular work is a power exercised by the Government or its functionaries and no such power can be exercised by Courts.
10. The grounds and the circumstances stated taken cumulatively could result in reasonable apprehension on the part of the applicant that he cannot get a fair and impartial trial and for theth determination of the existence of such apprehension the Court must place itself in the position of the applicant seeking the transfer and look at the matter from his point of view.
11. I accordingly accept the application and transfer the two counter cases to the Session Judge, Shikarpur for disposal according to law.