RAJA SAEED AKRAM KHAN, J. --- This appeal has been directed against the judgment passed by the Shariat Court on 11.3.2012, whereby the application filed by the appellant, herein, for transfer of the case titled "State v. Shahbaz Ashraf from District Court of Criminal Jurisdiction, Bhimber to District Court of Criminal Jurisdiction, Mirpur, has been disallowed and the Trial Court is directed to decide the case within 12-weeks.
2. The gist of the facts as emerged from this appeal is that a case under sections 307, 427, 147, 148, 149, 34, APC, 5/15, Islamic Penal Laws (Enforcement) Act read with Section 17(3) of the Offences Against Property (Enforcement of Hudood), Act, 1985 was registered at Police Station, Barnala on the complaint of Nasrullah. After completion of investigation, the challan was submitted before the District Court of Criminal jurisdiction, Bhimber, where the trial is in progress. The complement moved an application before the learned Shariat Court for transfer of the case from District Court of Criminal Jurisdiction, Bhimber to District Court of Criminal Jurisdiction, Mirpur. Vide impugned order dated 11.3.2013, the application was disposed of with the direction to the Trial Court to conclude the trial within a period of 12-weeks, while refusing the request to transfer the case from one district to the other. Hence this appeal.
3. Ch. Muhammad Ashraf Ayaz, Advocate, the learned counsel for the appellant, argued that the learned Shariat Court has not applied its judicial mind and dismissed the application with the direction to the Trial Court to dispose of the matter within a stipulated period while ignoring the controversy raised in the application. He argued that the learned Shariat Court failed to take into consideration that every act and order of the District Criminal Court, Bhimber, seems to be passed in favour of the accused even the public prosecutor is also acted under the guideline of the Trial Court with partial attitude. He further argued that it is apparent from the record of the Trial Court that the accused respondent had filed an application for pre-arrest bail and he had also moved an application for transfer of the bail application from District Court of Criminal Jurisdiction, Bhimber to District Court of Criminal Jurisdiction, Mirpur and the application for transfer of the case was refused by the Trial Court. Later on, the same Court on an application for bail after arrest accepted the application and released the accused-respondent on bail. He further stated that the accused-respondent is the principal accused in the case, who remained absconded more than 10 years. The learned counsel further contended that the District Bar Association, Bhimber has also levelled the allegations against the Presiding Officer of the District Criminal Court, Bhimber, which factor is also supported to the version of the appellant, herein. He further averred that keeping in view the overall facts, the appellant has an apprehension that he would not get the fair trial before the Trial Court. He requested that the . Case may be transferred from District Bhimber to District Mirpur. He lastly argued that the learned Shariat Court without adhering to law and without considering the submissions made before it has refused the application for transfer of the -case from District Court of Criminal Jurisdiction, Bhimber to the District Court of Criminal Jurisdiction, Mirpur.
4. On the other hand, Raja lnamullah Khan, Advocate, the learned counsel for the accused respondent, while controverting the arguments advanced by the learned counsel for the appellant, argued that the learned Shariat Court,has turned down the application for transfer-dVthe case while assigning the cogent reasons. He further argued that the appellant failed to provide any proof in support of the allegations levelled against the Presiding Officer of the District Criminal Court, Bhimber, therefore, the apprehension of the 'appellant is baseless and he wants just to drag the accused and linger on the matter by filing frivolous applications. He further averred that the learned Shariat Court has already directed to conclude the trial within a period of 12-weeks but filing of this appeal has created hurdle to comply with the direction issued by the learned Shariat Court.
5. Mr. Muzaffar Ali Zaffar, the learned Additional Advocate-General, supported the arguments advanced by the learned counsel for the accused-respondent.
6. We have heard the arguments of both the learned counsel for the parties as well as the learned Additional Advocate-General and also perused the record and the impugned judgment of the Shariat Court. A case under sections 307, 427, 147, 148, 149, 34, APC, 5/15, IPL read with Section 17(3) of the Offences Against Property (Enforcement of Hudood), Act, 1985 was registered at Police Station, Barnala on the complaint of Nasrullah. In this regard, the challan has already been presented in the Court of competent jurisdiction. The trial is in progress and the learned Shariat Court has also issued a direction to the Trial Court to conclude the trial within stipulated period.
7. We have also perused the contents of the application in which the learned counsel for the appellant prayed for transfer of the case from one district to the other. It appears from the grounds taken by the appellant that an effort is made to malign the Court as there is nothing on the record in support of the grounds taken by the appellant in the application to transfer the case from one district to the other as the same cannot be transferred at the wills of the parties. Nobody can be allowed to blackmail the Court while levelling the flimsy allegation. When the learned counsel, was confronted with the situation that why the appellant should not be prosecuted for moving such-like frivolous application which has no substance at all, he stated wisely not to contest the appeal seriously, while making the submission that a lenient view should be taken. It is settled law that the transfer of the case cannot be claimed as a matter of routine or at the will of any party unless it is apparent on the face of the record that the parties seeking the transfer as they could not get the fair trial. Whereas, in the case in hand, nothing is on the record in support of the version of the appellant wherefrom we may able to gather the opinion that the apprehension shown by the appellant is based on sound reasons. The stand taken by the appellant amounts to adopt delaying tactics and to create hurdle in the final conclusion of the trial. Our this view finds support from the case titled Mehboob Ali & another v. The State [2004 SCM R 261], wherein it was observed as under:- -- "3 ...Learned High Court dealing with this contention observed that the Trial Court was directed to dispose of the matter without delay and the act of the Trial Court not adjourning the matter was in consonance with the direction given by the High Court. The High Court was also of the opinion that the petitioners were interested to prolong the proceedings as much as possible. Learned counsel for the complainant states that the petitioners are adopting delaying tactics and are creating hurdles in final disposal of the case on merits."
Similarly in the case titled Hall Khawar Saleem v. The State [2001 SCM R 905], it was held as under:-- - "8. It is well-settled law that the transfer of a case pending in a competent Court could not be claimed as matter of routine or at the wish of any of the parties unless it was apparent on the face of the record that party seeking transfer could not get fair and just treatment/trial. Learned counsel for the petitioner submitted that the above-mentioned circumstances are sufficient to furnish strong basis for entertainment of an apprehension by the petitioner that he may not be fairly treated."
8. The allegation levelled in the application that the District Bar, Bhimber, has also shown the reservation against the Presiding Officer but in support of these allegations, no resolution from the Bar or any other proof brought on the record, therefore, the grounds taken in the application seems to be false and based on mala fide. He tried to lower down the prestige of the Court which demands serious action against such-like person. Even otherwise, we have observed that it became the practice that to get the result of their own choice, the parties try to pressurise the Court. Such-like conduct cannot be tolerated and shall be dealt with iron hands under law. The person who is found indulged in such-like practice, a stern action shall be taken against him. It is alleged that the principal accused remained absconded for a period of 10 years and the District Criminal Court, Bhimber, has admitted him the bail, therefore, the case may be transferred. We are afraid that such-like ground cannot be made basis for transfer of the case as the Courts are always expected to pass the orders under the statutory provisions of law. If a party is aggrieved of the order of the Court, he may avail the remedy under law by filing appeal/revision, etc., but instead of availing the remedy under the statutory provisions, the appellant tried to malign the Court. The allegations levelled against the public prosecutor also seem to be baseless and nothing is available on the record from which it could be ascertained that the public prosecutor has extended any favour to the other party. The principles laid down by the superior Courts while transferring the case has been enunciated in a case titled Muhammad Nawaz v. Ghulam Kadir & 3 others [PLD 1973 SC 3271, wherein it was observed as under:- We fully endorse the summing up of these principles by the High Court in the case of Rahn Bakhsh mentioned above. Namely, 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. It is of paramount importance that parties arranged 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 insuring 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 prejudice 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 a reasonable man might justifiably be expected to have."
The Hon'ble Judge in the supra case has observed that there must be reasonable apprehension in the mind of a party that the Court would not be able to act fairly and impartially in the matter. In such-like cases, it is to be seen whether in the given circumstances the apprehension of not getting a fair trial is an apprehension that 'a reasonable man' might justifiably be expected to entertain. If the apprehension being expressed is really such as a reasonable man' might justifiably be expected to have, the Court should transfer the case, otherwise not. Mere apprehension in the mind of a party that he will not get justice at the hands of Presiding Officer of the Court is no ground for transfer of the case. The apprehension must be reasonable. The reasonableness is to be decided while looking into the peculiar facts and circumstances of each case. Reliance can be placed in a case titled Muhammad Munir v. The State [2001 P.Cr.L.J. 1650], wherein it was observed as under:- "6. The perusal of the above comments shows that the learned counsel for the applicant/accused put irrelevant questions to the prosecution witnesses, therefore, the same were not allowed. It is the duty of the Judge under law to decide about the relevancy, irrelevancy, admissibility or inadmissibility of the questions put to the witness. The object of the cross-examination is to elucidate the truth. The Presiding Officer of the Court has to ensure that the witness is not heckled or harassed by way of any irrelevant question. The witness is as respectable as any other person until and unless it is proved otherwise. Both sides of the scale are to be kept equal and not to be tilted on either side. It is well-settled that mere apprehension in the mind of a party that he will not get justice at the hands of Presiding Officer of the Court is no ground for transfer of the case. The apprehension must be reasonable. The reasonableness is to be decided looking towards the peculiar facts and circumstances of each case. Merely because certain irrelevant questions were put to the witness and disallowed by the Trial Judge, it would not furnish sufficient ground for the transfer of case."
The word 'reasonable' denotes that the material should be of such a character which would satisfy the objective test that a person after going through such material must come to the conclusion that the apprehension is well-founded. It should not be based on apprehensions or presumptions and on the imaginary grounds. Where no such elements are available, the Court must refuse to transfer the case. Our this view finds support from the case titled Muhammad Malik v. Muhammad Rafooq & 2 others [1993 P.Cr.L.J. 1362], wherein it has been observed as under:--- "5. I find, nowhere, the learned counsel has given any time and date of the incident which has created this apprehension in the mind of the petitioner that he will not get a fair trial at the hands of the learned Trial Magistrate. The law requires that a case should be transferred if there are reasonable apprehensions in the mind of the litigant that he is not going to get a fair trial at the hands of the learned Trial Court, the word 'reasonable' denotes that the material should be of such a character which would satisfy the objective test that a person after going through that material must come to the conclusion that the apprehensions are well-founded."
9. After going through the grounds taken for the transfer of the case from one district to another seems to be vague in nature from which the mala fide on the part of the appellant is apparent. We may also like to observe that it is the duty of the superior Courts to give full protection against such-like frivolous allegations while keeping in mind the honour, nobleness and dignified duty performed by the Judges who are directly answerable to Almighty Allah. A Judge who is hearing the case is expected to remain composed in fact of insinuations and supposed to do justice to the litigants because it is one of the most sensitive and most sacred duties cast upon him. The slightest deliberate deviation from the correct path may render him severely accountable before the Almighty Allah. The Court has to put itself in the position of applicant and then to see whether apprehension shown by him was genuine or not. The Presiding Officers should not be allowed to be harassed and maligned un-necessarily by the litigants merely on groundless and baseless app ehensions. However, if there s genuine complaint against any Presiding Officer that can be entertained according to the material placed before the Superior Court. We may also observe that it is also the duty of the learned members of the Bar who are the other side of the same coin, to come forward to discourage this practice rather to defend the illegal activities of any party. Being an officer of the Court, it is the duty of the learned members of the Bars to assist the Court while keeping in their mind the dignity and honour of the Court, which the Court legitimately expected from them.
10. Although, we were inclined to take a stern action against the complainant, who moved the transfer application based on groundless allegations but while considering the request of the learned counsel for the appellant, we have taken a lenient view while holding that the transfer application was based on mala fide and suchlike person, who has not come with clean hands in the Court is not entitled to any relief. Therefore, the learned Shariat Court was fully justified to turn down the request of the appellant for transfer of the case.
Before parting with the judgment, we would like to observe that the Trial Court while following the direction issued by the Shariat Court shall take all the measures to expedite the matter within the stipulated period.