This is a petition under section 526, Cr. P. C., for transfer of a criminal case. Three grounds have been urged :-
(i) That the learned Assistant Commissioner transferred the case to the Court of Sardar Ahmad Sher Khan; Magistrate, without any justification.
(ii) that the order passed by the learned Assistant Commis--sioner is also improper because it was passed due to the reason that Mr. Khalil-ur-Rehman Ramdey, Advocate, -a very close relation of the learned A. C. Was engaged for the transfer matter (i.e) that Sardar Ahmad Sher Khan, the learned Magistrate, released to of the accused on bail without keeping the order of the High Court in view.
2. So far as the last ground is concerned, I disposed it of by my order, dated 12th October 1970. The same may be read as part of the present order.
3. So far as the first and second grounds are concerned, they can be disposed of together. In the petition, a serious allegation was made that Mr. Khalil-ur-Rehman, Advocate, a close relation of the learned A. G., superseded another learned counsel in the matter of transfer application pending before the learned A. C. A specific mention is made in para. 5 of the petition that the case was transferred by the learned A. C. To Sardar Ahmad Shed` Khan, the learned Magistrate who is now trying the case, presum--ably because he is a close friend of the learned A. C. It was also surmised that the manner in which the case was withdrawn from the Court of Raja Muhammad Ayub Khan by the learned A. C., Lahore, had resulted in miscarriage of justice. I summon--ed Mr. Rashid Ahmad Awan, Advocate, who was said to have been superseded by Mr. Khalil-ur-Rahman. The former stated that the allegation relating to supersession was correct. It needs to be mentioned that according to the learned counsel he filed the application-for transfer, "but before the decision of that applica--tion" the file way taken away from him; obviously because another counsel (Mr. Khalil-ur-Rehman) had been engaged. But he clarified that through information received indirectly, he knew that Mr. Khalil-ur-Rehman in fact, did not appear before the learned A. C. On this Mr. Muhammad Iqbal Bhatti, learned counsel for the petitioner, made a statement at the bar, which is noted in my order, dated 9th November 1970. According to him, in fact Mr. Khalil-ur-Rahman was engaged to appear before the learned A. C. In the transfer matter but instead of himself appear-- ing he sent his junior, Mr. Mueen-ad-Din for the formal appearance. Otherwise he (Mr. Khalil-ur- Rehman) remained the counsel for the accused respondents, during the pendency of the transfer application before the learned A. C., who is his relation; and also after the decision of that application. On this I sent for Mr. Khalil-ur-Rehman and Mr. Mueen-ud-Din, Advocates, and perused their case diaries. On perusal, I noticed that the entries in the diary of Mr. Khalil-ur-Rehman supported the con--tention of the learned counsel for the petitioner. Therefore, I ordered both the learned counsel that copies of "entries concerned with this case both in the diaries and in the brief case should be placed on the record'". The petition was admitted to regular hearing and proceedings were stayed by my order, dated 18th November 1970. It needs to be mentioned that I had asked for the reports of the learned A. C., and the learned trial Magistrate in respect of the grounds taken in the petition.
4. The learned trial Magistrate has expressed ignorance about what happened in the Court of the learned A. C, earlier to the transfer of the case to his Court. He, however, stated that he bad no "close friendly relations with Ch, Nazir Ahmad, Assistant Commissioner'. He has also denied the other allega--tions made in the petition. The learned A. C., in his report, admitted that Ch. Khalil-ur- Rehman is the real brother of his brother-in-law. He, however, stated that the learned counsel did not- appear in the transfer application in his Court "although he is not legally debarred from doing so", and that he had specifically asked him not to appear in his Court in-any case. With regard to his friendship with Sardar Ahmad Sher Khan, the learned Magistrate, lie has stated that he is one of his colleagues and is not his close friend. About the decision of the transfer application, the learned A. C. Remarked that in his opinion it was based on grounds which were sound and were based on merits.
The aforesaid to learned Advocates have placed on record the copies of some entries in their case diaries relating to this case. The copies of the entries on the brief cases have, for reasons best known to the learned Advocates, not been placed on the record. When the case came up for hearing, Mr. Muhammad Iqbal Bhatti vehemently urged that the copies of the most relevant and important entries had not been placed on the record. The case diaries have again been summoned. The contention of the learned counsel is based on facts. After perusal of the case diary of Mr. Khalil-ur-Rehman Ramdey Advocate, I have noted the following :-
(i) 25th July 1970. under section 363/366/368/376.
Transfer application before A. C: 31/7."
There is a red ink mark in hollow circle against this entry.
(ii) 31st July 970.
(i.e) 1st August 1970.
5. The order of withdrawing the case from the Court of Raja Muhammad Ayyub, Corporation Magistrate, and entrusting it to Sardar Ahmad Sher Khan, was passed by the learned A. C., on 1st August 1970. The case diary of Mr. Khalil-ur-Rehman supports the contention of the learned counsel for the petitioner that he was engaged in the transfer application. The fact that Mr. Mueen-ua-Din Chaudhry is a junior of Mr. Khalil-ur-Rehman has not been denied before me. It appears that Ch. Khalil-ur---Rehman was engaged as a counsel in the transfer application and it is also clear that he sent his junior to appear before the learned, A. C., presumably because, as the latter has reported, he had asked him (Mr. Khalil) not to appear in his Court in any case. The learned A. C. Has laid some stress on the fact that Mr. Khalil is not legally debarred from appearing before him, but I must remark that he has laid unnecessary stress on purely legal aspect and has, while making the comment, ignored the propriety involved in the matter. The conduct of Mr. Khalil-ur-Rehman in superseding another counsel, exactly at the stage when the transfer application was pending before his close relation and the fact that he was engaged in the transfer application, also gives rise to a very strong suspicion. However, in view of the denial of the learned A. C., it is not at all possible to give a finding that the case was transferred by the learned A. C., due to any extra- consideration of showing favour to his relation. I refrain from making any further remarks in the matter because, apart from the perusal of the case diaries and the opportunity of appearance afforded to Mr. Khalil-ur-Rehaman and Mr. Mueen--ud-Din, I did not hold any detailed enquiry in the matter. I refrained from doing so because the proceedings under section 526, Cr. P. C., do not require any such detailed enquiry.
6. I have carefully gone through., the order passed by the learned A. C., under section 528, Cr. P. C., whereby the case was ,transferred to Sardar Ahmad Sher Khan. After noting the con--tentions of the applicant before him, the learned A. C., observed that he went through the explanation submitted by, Raja Muhammad Ayub Magistrate and that he "need not comment on the other grounds urged fur the transfer which ate of procedural nature and in respect of which the learned Magistrate has exercised his judicial discretion". In paragraph 4 of the order; the learned A. C., made reference toy the fact that it appeared to him from the Urdu record that the learned counsel for the applicant before him raised some objection, the nature of which and the reasons for "overruling" the same were not noted by the learned Magistrate. Another circumstance is noted that the learned Magistrate, by a written order, disallowed a question asked by the learned defence counsel. Reference is also made to the fact that the defence counsel made an application before the learned Magistrate praying that the victim of offence (prosecutrix in a 376, P. P. C. Case) and her mother be asked to identify the accused in an identification parade in the jail. It is noted by the learned A. C., that this application was disallowed by the learned Magistrate "simply on the reason that it was moved about six months after the occurrence". The learned A. C. Then remarked that "if the application was made after so much delay that was the own risk of the accused because in the case of identification the fact could have been used against the accused themselves". After noticing the above circumstances, the learned A. C., in paragraph 5 of the order, observed that "the above-mentioned facts are likely to create an apprehension in the mind of the petitioners that they will have no fair trial in the Court of Raja Muhammad Ayub, Corporation Magistrate, Lahore. It is not necessary that the apprehension may be a genuine apprehension. Justice should not only be done but should appear to be done". On the basis of this observation, an order transferring the case was passed. However, before closing the order, the learned A. C., clarified "that the transfer of this case is not supposed to cast any suspicion on the conduct of the learned Magistrate".
7. I notice certain inconsistency in the order of the learned A. C. On the one hand, he brushed aside some grounds on the basis that the arose out of the exercise of judicial discretion by the learned Magistrate, and on the other hand he transferred the case for the reasons which again very much relate to the exercise of judicial discretion by the learned Magistrate. The various orders of the learned Magistrate noticed in paragraph 4 of the order of the learned A. C., were passed by him (the learned trial Magistrate) in connection with the proceedings pending before him, and I do not think that in deciding the questions raised before him the learned Magistrate had shown or tended to show any favour to any of the parties. He appears to have passed those orders according to his own judgment. They could not be made the basis of the transfer of the case from the learned Magistrate. I do not agree with the remark of the learned A. C., that "it is not necessary that the apprehension may be a genuine apprehension". On the contrary, it is not every apprehension of an agitated mind of an unreasonable person that can be made the basis of an order of transfer under section 528, Cr. P. C. It is only a reasonable and genuine apprehension which can be taken note of.
It is the apprehension of an ordinary reasonable person that should be C made the basis of an order of transfer. There is no doubt about the very salutary principle that justice, should not only be done but it should also appear to be done. This principle must be applied to all the proceeding. It appears that the learned A. C., while making this comment qua the proceedings before the learned trial Magistrate, did not himself observe it qua his own proceed--ings. After considering all the circumstances noted and discussed above, I am satisfied that the withdrawal of the case from the Court of Raja Muhammad Ayub and its transfer to that of Sardar Ahmad Slier Khan by the learned A. C., by order, dated 1st August 1970 was not justified.
8. The question now arises whether the case should again be entrusted to Raja Muhammad Ayub Khan. No doubt, purely technically speaking, this should be the course to be adopted after my finding that the order of the learned A. C., was not justified. But I consider it expedient for the ends of justice in the peculiar circumstances of this case that it should not be sent to the same learned Magistrate. While making this observation, I have not only kept in view sub-clause (e) of Subsection
(1) of section 526, Cr. P. C. But also the fact that sending the case back to the same learned Magistrate is likely to create, at least, some rancour or ill-feeling in so far as the learned Magistrate are concerned. It can also give rise to unnecessary elation and/or depression in so far as the parties are concerned. I, therefore, consider it expedient that this case should be tried by another learned Magistrate. The file shall now be sent to the learned District Magistrate who shall entrust it to any Magistrate of competent jurisdiction.