1. I propose to dispose of both the Criminal Transfer Applications bearing Nos. 8 and 9/1981 by this single order. I have heard Mr. Abdul Qadir Halepota, Advocate for the petitioners, and Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Karachi, for the State.
2. The facts giving rise to Criminal Trausfer Application No. 8/1981 are that the thirteen applicants are alleged to have committed, or, conspired to commit murder of six persons, who are stated to be the Mureeds of Pir Saheb Pagaru. The said incident is alleged to have occurred in October, 1973, but the formal First Information Report was lodged on 10August 1977. In the Report, a photostat copy whereof has been placed on the record, the relevant allegations are stated in following words:- "My near six relations, namely (1) Mehrab, (2) Umed Ali, (3) Jan Muhammad, (4) Hamzo, (5) Syed Ali Sher Shah, and (6) Dadan were shot dead by the Sanghar Police on 8th October 1973. I sent a written complaint to the Inspector-General of Police Sind, Karachi, on 11October, 1973 against the accused persons mentioned in the application. Jam Sadiq Ali, the former Minister of the Government of Sind and Muhammad Khan Junejo, the Home Secretary of Sind, were also responsible for these murders. I also enclose herewith a copy of weekly Zindgi which contains the details of the incident given by a journalist regarding these murders."
3. After the investigation into, the case it ,vas sent up for trial before Mr. Mirza Irshad Baig, Sessions Judge, who retired during the pendency of the case, and then it was heard by Mr. Shafi Muhammad Akhund, Sessions Judge, who also retired during the pendency of the same. The case, thereafter, came up before Mr. Qadeer Muhammad Qureshi. Sessions Judge, Karachi, who recorded some evidence, but he was also transferred as Sessions Judge. Sukkur, so that the case came up before Mr. Abdul Ghafoor Shaikh, Sessions Judge, Karachi. Mr. Abdul Ghafoor Shaikh hadth th made a Reference to this Court on the administrative side for transfer of this case from his file on the ground that one of the accused had served with him as a member of the Tribunal under the Defence of Pakistan Ordinance, and therefore he did not want to proceed with the case. Such request of Mr. Abdul Ghafoor Shaikh was rejected by me on the administrative side, as none of the parties had a grievance against the Judge. However, soon thereafter complainant Muhammad Yaqoob filed two separate transfer applications in this Court which were registered as Criminal Transfer Applications Nos. 56 and 60/1980. Complainant Muhammad Yaqoob had sought transfer of the two cases, which are the subject-matter of the two transfer applications that are being disposed of by this order. By an order, dated 5February, 1981, I transferred both the cases to the Court of Mr. Qadeer Muhammad Qureshi, Sessions Judge, Sukkur and had given a direction that the learned Judge should himself come to Hyderabad to try these cases. In fact, trial at Hyderabad was ordered for the convenience of the Advocates appearing in those cases, most of whom normally practise at Hyderabad. In the case, which is the subject-matter of Criminal Transfer Application No. 51981, all the evidence has been recorded, and the case was fixed for arguments.
4. However, the other case, out of which Criminal Transfer Application No. 9/1981 arises, has not yet opened. By these two transfer applications, the accused/applicants seek transfer of the two cases from the Court of Mr. Qadeer Muhammad Qureshi.
5. Mr. Abdul Qadir Halepota has initially pointed out that the earlier order whereby the two cases were remitted for trial to the Court of Mr. Qadeer Muhammad Qureshi, had proceeded on a wrong premises of facts. He pointed out that the statement in my order to the effect that a good number of witnesses had been examined by Mr. Qadeer Muhammad Qureshi was incorrect. However, Mr. Abdul Qadir Halepota has stated before me that the case had proceeded before Mr. Qadeer Muhammad Qureshi before it came on the file of Mr. Abdul Ghafoor Shaikh, and Mr. Qadeer Muhammad Qureshi had examined some evidence. In any case, whether Mr. Qadeer Muhammad Qureshi had examined a good number of witnesses, or, a few witnesses would be entirely irrelevant for the purpose of determining whether this case could, or, should have been transferred to his Court. The fact of the matter is that Mr. Qadeer Muhammad Qureshi had earlier proceeded with these cases, and I had formed an opinion that it would be better if the cases were remitted to the same Court, which had earlier dealt with those cases. I see no sub-- stance in this argument.
6. Mr. Abdul Qadir Halepota had drawn` my attention to several circumstances, which I will enumerate presently to base a contention that Mr. Qadeer Muhammad Qureshi was hostile and prejudiced against the accused/applicants.
7. The first contention is that, on 11April, 1981, Mr. Qadeer Muhammad Qureshi had passed an order, asking the accused/applicants to submit arguments in writing. It is contended that the learned Judge did not want to hear the oral arguments in the case. My, attention was drawn to the provisions of section 265-G, Criminal Procedure Code, which provides for the parties' summing up their case. It could not be easily comprehended that, by the mere fact of the Sessions Judge asking for written arguments, he had forbidden the parties from arguing the case orally. I had, therefore, by an order, dated 26th April, 1981, called for a Report from the Sessions Judge on the point, whether he proposed to hear oral arguments, or, to dispose of the case on the basis of written arguments alone. Mr. Qadeer Muhammad Qureshi, the learned Judge, by his Report, dated 2nd May, 1981, stated that he had expressed in open Court that since evidence had not been heard by him, they should submit a written argument, and thereafter they may be allowed to argue the case orally. He has categorically stated that, in spite of obtaining written arguments, he had intended to hear the Advocates orally in compliance with the provisions of section 265-G, Criminal Procedure Code. It seems the record in this case is bulky, and, since the evidence had been recorded by several other Judges, Mr. Qadeer Muhammad Qureshi wanted to have the brief of arguments first, and then hearth th the Advocates orally. No fault can be found with such procedure, and. In any case, no inference of bias can be drawn out of this circumstance alone.
8. The next point that has been urged by Mr. Abdul Qadir Halepota is that, on 8th June 1981, Mr. Qadeer Muhammad Qureshi had issued a notice to applicant/accused Imdadullah Unar, asking him to show cause why his bail should not be cancelled, because he had purposely avoided the progress of the case by not making his Advocate available. It seems that, on the date of hearing, the Advocate for accused/applicant Imdadullah Unar did not appear in Court, so that an adjournment had become unavoidable. This is an old murder case, and it was very desirable to finish the same at an early date. What is more that the Judge, trying the case, is posted at Sukkur, but on each hearing, he has to come to Hyderabad for the trial of this case. The anxiety of the learned Judge to proceed with the case is, therefore, understandable. However, even from this notice, calling upon accused/applicant Imdadullah Unar to show cause against cancellation of his bail, no bias can be inferred. In fact, bail was not cancelled. What is more that, if the learned Judge was prejudiced against the accused, he would not have given him five weeks' time, viz. Until 15th July, 1981, to show cause against cancellation of bail. In my view, this is not a circumstance which shows any bias.
9. Mr. Abdul Qadir Halepota has also invited my attention to some other orders passed by Mr. Qadeer Muhammad' Qureshi to raise a contention that these orders exhibit hostility of the Judge to the appli--cants/accused. It seems that an application was made before Mr. Qadeer Muhammad Qureshi for joining prosecution witnesses Muhammad Rashid and Muhammad Ismail as co- accused. It is alleged that these witnesses who were Government servants, had prepared a false record to destroy evidence in regard to commission of the offence. This application for joining these two witnesses was rejected by Mr. Qadeer Muhammad Qureshi on 29th July, 1980. The learned Judge took the view that false entries in the record were made by the two witnesses under coercion, or, under directions from their own officers. A revision application was filed in this Court to challenge the said order, and this application was disposed of by Mr. Justice Sajjad Mi Shah on 8th September 1980, where--by the impugned order was set aside, and a direction was given to the Sessions Judge to rehear the application in the light of the observations made by the learned Judge in regard to the law applicable in the case. By the time Mr. Justice Sajjad Ali Shah passed this order, remanding the case for rehearing, Mr. Qadeer Muhammad Qureshi had been trans-- ferred to Sukkur, and the case was pending before Mr. Abdul Ghafoor Shaikh. Mr. Abdul Ghafoor Shaikh, on 14October, 1980, passed an order that the application for joining the witnesses shall be considered at the time of final argument in the case. Now the short question is, whether an inference of bias can be drawn against Mr. Qadeer Muhammad Qureshi on the sole ground that, on account of mistaken view of law had passed an order, which was not upheld by the High Court.
10. In my view, no inference of bias, or, prejudice can be drawn from such fact alone. It would be wrong to attribute bias to a Judge for the mere fact of the Judge having passed a wrong order, or, for the reason that the order had been set aside by the High Court.
11. Mr. Abdul Qadir Halepota has also drawn my attention to another order passed by Mr. Qadeer Muhammad Qureshi, on 29July, 1980, whereby the learned Judge had rejected an application by the accused/ applicants for permission to see the police statements of the accused; applicants as recorded by the Investigating Officer in the case diary. Mr. Abdul Qadir Halepota has amplified this argument by stating that the judicial confessions of some of the accused /applicants are the verbatim reproduction of their alleged statements before the Police. In other words, the allegation is that perhaps manuscripts of confessional statements of some of the accused were placed before some Magistrates, who have copied out the same on the forms prescribed for the recording of confes--sions. His grievance is that the copies of such statements should have been given to the accused/applicants, and by the refusal of the Judge to grant such copies, the accused/applicants have been hampered in their defence. In that context, it may straightaway beth th stated that the accused are entitled to copies of the statements made before the Police by witnesses, but they are not entitled to copies of the statements of co-accused. However, Mr. Qadeer Muhammad Qureshi, in his order, has stated as follows:- "Thus Mr. Allah Dino has failed to establish that he is legally entitled to see the statements of the accused made before Police, He may however at the time of final arguments request the Court to take aid from the police diary and look at the statements of the accused before the police to satisfy if they are the same word by word as recorded in judicial confession. I, therefore, hold that the application for permission to see the police statements of the accused during investigation cannot be granted and hence the application is dismissed."
12. The above passage in the order would indicate that the learned Judge was having an open mind, and intended to look at the Police diary in order to find out whether the judicial confession was a verbatim reproduction of the police statement. Even from this circumstance, no inference of bias could be raised.
13. No other argument was raised before me by Mr. Abdul Qadir Halepota.