SOHAIL NASIR, J.---"A Judge is good, honest, competent, hardworking and upright only if he has decided a case in my favour otherwise he is biased, dishonest and having connivance with other side of the case". This is the time to curb such voices of the litigants who want to undermine the administration of justice only to achieve their illegal designs.
2. Abdul Razzaq (petitioner) appears to be one of those litigants, who is the complainant of case FIR No. 412 recorded on 08.07.2020 under sections 324/337-A(i)/337-A(iii)/337-F(iii)/337-F(v)/337- F(vi)/ 337-L(2)/148/149, P.P.C. at Police Station Sadar Arifwala District Pakpattan against Ali Hassan, Muhammad Nadeem Abbas/respondents Nos. 2 and 3 (accused) and others.
3. Accused had applied for their bail after arrest, which is pending in the Court of Mr. Muhammad Azam Rana, learned Additional Sessions Judge Arifwala. Petitioner having apprehension of injustice from that Court, has filed the instant petition for transfer of bail application titled "Ali Hassan and another v. The State and another" from that Court to any other Court of competent jurisdiction.
4. In the application, petitioner did not specify any particular fact showing apprehension in his mind except that he has no hope for justice from the Court concerned and that once an apprehension is earned by a party, the case is to be transferred. Petitioner however, has referred to an application which he has moved to the Member Inspection Team of this Court (C.O.
239/06.07.2021), the copy whereof is also part of this file. On perusal of said document one can understand that what has persuaded the petitioner to approach this Court. It shows that earlier the learned Additional Sessions Judge had granted the post arrest bail to Muhammad Saleem Abbas and Muhammad Boota other accused of FIR, where after petitioner submitted an application for recalling of bail granting order on the ground of tampering with prosecution's evidence, but the same was dismissed by the said Court. Paragraph No. 4 of the application is relevant and is as under: - "That the judge is in league and collusive with the accused of FIR and the accused party had sold one acre of the agricultural land from square No. 18 situated in the village 73/E.B to one Khursheed Fouji caste Jammu, resident 73/E.B, had also sold cattle heads and had leased out their agricultural land for the said purpose. The accused of FIR who happens to be the relative of the petitioner as well, has spread that they are in league with the judge and had managed whole the case."
5. Learned counsel for petitioner contends that once there is a reasonable apprehension in the mind of a party to litigation that is alone a good reason for transfer of case; if the proceedings are not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system; the conduct of the learned Additional Sessions Judge is unfair and biased, therefore the machinery of justice is not geared to work in the midst of such conditions necessary for fairly deciding the bail application.
6. Petitioner is relying on clause (1) of section 526, Cr.P.C. that the High Court has the power to transfer a case if its fir is that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto.
7. Judges are presumed to be performing their duties with all honesty and dedication, by knowing that they have been bestowed with a sacred obligation to deliver justice beyond any worldly temptation. To rebut the said presumption strong and exceptional material is required. Petitioner has not brought on record any substance to show that fair and impartial proceedings are not possible. It appears that only on the reason that judicial orders passed by learned Additional Sessions Judge are not in his favour petitioner has no hope for justice. By now it is the settled principle of law that merely because of adverse judicial orders passed by a Court against a party, will not be a sufficient ground directing transfer of case from the Court as aggrieved person has remedy to challenge the orders before the Court of competent jurisdiction.
8. Learned counsel for petitioner has repeatedly referred to the words `reasonable apprehension' for not getting the justice but unable to substantiate, what a 'reasonable apprehension' means?
9. The Dictionary meaning[1] of word `apprehension' is:- Anticipation of adversity or misfortune.
Suspicion or fear of future trouble or evil.
The faculty or act of apprehending or understanding. deception on a direct and immediate level.
Acceptance of or receptivity to information without passing judgment on its validity, often without complete comprehension.
10. Whereas the word 'reasonable' has been defined as: - Agreeable to reason or sound judgment.
Logical
11. So the composite meaning of 'reasonable apprehension' is that F the fear must be based on sound judgment.
12. The Supreme Court of Canada[2] has defined this phrase as under:- "The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. The test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude"
13. It was also held by the. Supreme Court of Canada[3] that: - "The test requires objectivity on two fronts: the perspective from which the alleged bias is viewed is that of a "reasonable person" (which may differ from that of an affected litigant), and the alleged bias must also be reasonable given the circumstances of the conduct[4]"
"Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. (Emphasis applied)
14. Judicial independence is the motto of judicial system and dispensation of justice Courts should not be subject to improper influence from private or partisan interests. With this independence, the G judiciary can safeguard people's rights and freedoms which ensure equal protection for all. A party cannot force the Court to regulate the proceedings according to its wishes as it is an exclusive domain and prerogative of the Court concerned. No doubt, a party has a right to argue but decision lies with the Court that is in accordance with law and on its merits.
15. The settled principles[5] on the question of transfer of a case from one Court to other are: i. A case should not be transferred from the Court of competent jurisdiction unless the allegations are supported by strong reasons or convincing evidence. ii. If such applications are allowed, it would impliedly mean that the allegations against a Judge have been deemed to be correct and this situation will certainly lower the image, dignity and honour of judiciary in the eyes of public at large. iii. Transfer of a case is to be allowed only in exceptional circumstances where the grounds urged are based on strong reasons and evidence. If this practice is not followed strictly, the parties are likely to take undue advantage by filing applications for transfer of their cases on flimsy, frivolous and baseless grounds. iv. While considering a transfer application, it must be kept in mind that the parties should not be allowed to pick and choose the Court of their own choice or liking. v. Interference in the working of the trial Courts, on fallacious grounds would give rise to a sense of insecurity amongst the Judicial Officers and in such eventuality the Judicial Officers may not be able to work with required vigor. vi. Vague and general allegations cannot be made the ground of transfer. vii. The Judges should equally be protected from frivolous transfer applications in order to achieve transparent even-handed justice so that one of the litigants should not be in a position to overpower the Judge which might ultimately result in tilting scale of justice under fear and malignity. viii. Suspicion or artificial and baseless apprehensions are not sufficient to seek transfer of case.
Any bald statement containing allegation is not sufficient to allow the transfer.
16. The honorable Supreme Court of Pakistan in Akhtar Ali's[6] case, in identical circumstances, while reducing the cost from Rs.50000/- (fifty thousand) to Rs.20000/- (twenty thousand) imposed by this Court on dismissal of transfer application was pleased to observe that:- `In his move before the Courts below, we have found his accusations directed against the learned Judges as outrageous as well as scandalous. It is fundamentally important for the peaceful preservation of any society that its Judges attend call of their office fearlessly with dignity, respect and independence so as to sit on the judgment between the contestants, regardless of their status or station, without let or hindrance. A society cannot countenance obstruction or, interference with the administration of justice without incurring disastrous consequences, therefore, to ensure freedom to a Judge within the remits of law is a duty cast upon all and sundry without exception and immunity."
17. Trend of moving transfer applications as well as the applications with false and frivolous allegations on administrative side in particular attacking the reputation and integrity of the Judges is getting alarming position. Frequent and unjust transfer applications shake the confidence not of the concerned Judicial Officer, but also others working under same umbrella. This confidence of all the Judges is also shaken, when without examining the contents of an application through a single line order the judicial leadership at district level call for comments. They must demarcate that in which matters the comments are required and where not? The comments are to be called only when prima facie there appears to be substance in the allegations. This is the high time that the Judges of district judiciary who are devoted, dedicated and committed towards their official obligations from morning till late night in dispensation of justice must be provided protection.
18. This is also need of the hour that the litigants who are responsible for character assassination of the Judges and causing for them unnecessary harassment by leveling the false allegations, must be dealt with iron hands by imposing exemplary costs while dismissing the applications. The case in hand is one of the classical examples, because in the transfer application read with application moved to the MIT, the petitioner has made attack on the integrity of the learned Additional Sessions Judge (Mr. Muhammad Azam Rana) by maintaining that he had connived with the other side.
19. Concluding the discussion made above, this application is dismissed with costs of Rs.50000/- (fifty thousands). The learned Additional Sessions Judge (Mr. Muhammad Azam Rana) is directed to proceed in the case with full confidence having no fear in the mind -except of Allah Almighty. In case complainant does not cooperate in the proceedings, the learned Judge shall decide the application after hearing the Law Officer for the State but strictly on merits, in accordance with law and without being prejudiced by the scandalous conduct of the petitioner.
20. A copy of this order shall be sent to learned Sessions Judge, Pakpattan, who shall ensure recovery of cost within fifteen days and compliance report shall be sent to the Additional Registrar (Judicial) of this Court.
[1]https://www.dictionary.com/browse/apprehension
2. Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 (https://www.canlii.org/en/ca/scc/ doc/1976/1976canlii2/1976canlii2.html)
3. 3 R. v. S. (R. D.), [1997] 3 S.C.R. 484
4. (https://www.canlii.org/en/ca/scc/ doc/1997/1997canlii324/1997canlii324.html? searchUrlHash=AAAAAQATWzE50TddIDMgUy5DLIIuIDQ4NAAAAAAB [5]Altaf Hussain v. The State and another PLD 2014 Sindh 287, Amin Kalhoro and 3 others v. The State 2015 YLR 2292, Mst. Bashiran Bibi v. Bashir Ahmad and 3 others 2015 MLD 1131, Abdul Latif and another v. Syed Kousar Ali Shah Bukhari and another 2017 YLR 1985, Mashooque Ali and another v. Additional District and Sessions Judge-H, Sanghar and others 2017 YLR 379, Mevo v.
Shabeer and 4 others 2018 PCr.LJ 971, Syeda Rukiya Shah and another v. Abdul Shakoob and others 2018 PCr.LJ 1211 and Noor Muhammad v. The State 2020 MLD 1071.
6. Akhtar Ali v. The State 2020 SCMR 1243