A case under sections 148, 302/149 and 201/149 of the Pakistan Penal Code was registered at Police Station Pir Mahal. Of Lyallpur District at the instance of the present petitioner (Zulfiqar son of Muhammad). There are 13 accused in this case and against five of them separate cases under section 13 of the Arms Ordinance were also put in Court in addition to the main case and after the magisterial inquiry that followed all of them were committed to Session to face their trial on the said charges.
2. All these cases were fixed for trial bef6ri; Malik Gulbaz Khan, Sessions Judge, Lyallpur, on 9th June 1969 and after the evidence of 19 prosecution witnesses had been concluded the progress of the case was held up by a transfer application (Criminal Miscellaneous No. 4758 of 1969) moved by one of the accused before this Court, which was accepted and by the order of my learned brother Mushtaq Husain Munir, J. Dated 4th November 1969, the case was transferred to the Court of the learned Additional Sessions Judge, Lyallpur. The main case along with the five cases under the Arms Ordinance were then made over to the learned Additional Sessions Judge. All the six cases were accordingly re-fixed for hearing on 4th February 1970, but the trial could not proceed as in the meanwhile the present petitioner had moved this Court with a petition under sec--tion 561-A, Cr. P.
C. For the review of the above-mentioned order transferring the case from the Court of the learned Sessions Judge to that of the Additional Sessions Judge, Lyallpur, which was heard after giving notice to the parties by the same Bench who declined to re-open the matter observing that section 369 of the Criminal Procedure Code precluded him from reviewing or altering the order and dismissed the petition on 3rd February 1970. Aggrieved by this order the present petitioner went up to the Supreme Court with a petition for Special Leave to Appeal (Criminal P. S. L. A. No. 54 of 1970) to get the transfer matter re-opened, but this petition was also dismissed on 10th April 1970. The cases were accordingly fixed for the third the for trial from 2nd June 1970 to 11th June 1970 and after the evidence of. 21 prosecution witnesses had been recorded the present petitioner on 9th June 1970 made another effort to impede the progress of the case by notifying to the Court that he intended to move the High Court for re-transfer of the case to some other Court and sought an adjournment for the same, but the request was refused, consequent on which the present petition was filed in this Court on the next day, i. e., 10th of June 1970, on the following grounds :--
(1) That the common witnesses of the recovery of fire-arms were being examined in all the six cases in so haphazard a manner that the prosecution witnesses felt confused and were under great stress and strain ;
(2) that the evidence of Ghulam Husain (P. W. 18), Allah Bakhsh (P. W. 19), Ghulam Farid (P. W. 20) and Muhammad Fazal (P. W. 21) were not read over to them in spite of their requests ;
(3) that the statement of Ghulam Husain (P. W. 18) was not correctly recorded about the identity of Ahmad and Rajada accused.
It was alleged that he had deposed that he knew Ahmad and Rajada accused and could very well identify them, but was recorded that he could not recognize as to who was Ahmad and who was Rajada, out of the to persons, although he had seen them earlier ;
(4) that Ghulam Farid and Muhammad Fazal P. Ws., who were also witnesses of the recovery of some broken teeth and small pieces of bones (packed in a small phial) were not shown these articles during their evidence to confirm that those were teeth and bones recovered at the instance of the relevant, accused ;
(5) that the refusal to adjourn the case on intimation that he intended to move the High Court for the transfer of this., case had vitiated the trial.
It was added that on 10th June 1970, after institution of this transfer application the counsel for the petitioner had intimated the trial Judge about it but in spite of it the proceedings were not stayed.
3. It would thus be clear that no allegations of personal malice, bias or prejudice were made against the trial Judge, so the only point which calls for determination is, if the irregularities detailed above furnish a good ground for the transfer of this case from the Court of the learned Additional Sessions Judge, who is at present seized of the case.
4. In his comments the learned trial Judge denied the allega--tions that the relevant prosecution witnesses of recoveries were being examines simultaneously in all the six cases and the actual dates of their statements given by him indicated that the evidence of some of them was actually recorded in the Arms Ordinance cases on different dates. He also refuted the allegation that he had not allowed them to correct their statements and added that the record would bear him out that after the close of his examina--tion only one .Of these witnesses sought permission to correct his statement and he allowed it in spite of the objection from the opposite counsel. He has added that he would record the answer given by the witness after the question was explained to him and he clearly understood it and, then would dictate his reply first in Urdu to the Reader and then in English to the Stenographer in quite audible voice so that the witness could follow each word his statement coming on the record, there was thus no room for any mistake in preparing the record of the case, and that each separate sentence of the statement having been read over to the witness in that manner the statement was not read over at its conclusion.
About the request for recording supplementary statement of Ghulam Farid (P. W. 20) and Muhammad Fazal (P. W. 21) in respect of the teeth and bones he has stated that the had told the counsel for the petitioner to submit an application for this purpose as their statements had already been closed in the main case, but nobody submitted any such application.
About the refusal to stay the proceeding on being notified by the petitioner that he intended to move the High Court for the transfer of the case his stand was that he had rightly exercised his discretion under clause (9) of section 526 of the Criminal Proce--dure Code in view of his above- mentioned earlier applications in the High Court as well as in the Supreme Court and has enclosed a copy of the detailed order passed by him about it on 9th June 1970. He has added that this being an old case relating to February 1968, wherein the trial had been suspended twice already on account of the above-mentioned applications of the petitioner himself he did not stay the proceedings forthwith and after recording the statements of the doctor and the fire-arm expert who had come from Peshawar he had adjourned the case, and without recording any evidence on the 10th of June 1970 in the main case he posted it to 13th June 1970, so that in the meanwhile the petitioner could obtain a stay order from this Court.
5. He might be technically wrong in the strict sense o the provisions of section 526 (9) of the Criminal Procedure Code, but he certainly was under a bona fide belief that his stand was correct and the authorities were not wanting to support the proposition that bona fide mistake of law is not a good ground for transfer of a case Narayan and another v. Bala Urkuda Kunbi (AIR 1936 Nag.
146.) and In re : Pakira Pujari (AIR 1944 Mad. 78) and Income-tax Officer v. District Magistrate (AIR 1955 Cal. 146) are some of them. It was particularly observed in Pakira Pujari's case that Sessions Judge's refusal to adjourn the case under section 526(9) of the Criminal Procedure Code based on a wrong opinion would not vitiate the trial unless it had occasioned a failure of justice in the case.
The same view was adopted in Salag Ram's case (38 Cr. L J 416) relied upon by the learned counsel for the petitioner in support of his contention that as the petitioner had no occasion during the progress of the trial in this Court before the 9th of June 1969 to move a transfer application the discretion under subsection (9) of section 526, Cr. P. C. Could not be invoked by the learned Judge but there was no dispute on this point. He had also referred me to Mir Ghaus Bakhsh Bizanjo's case (PLD 1968 Quetta 15) but it was not applicable as it was pending before a Magistrate who had ago option but to adjourn the case when notified by the party concerned that he intended to move the High Court for its trans--fer to some other Court as the provisions of subsection (8) are mandatory (and operate to divest the Court temporarily of the Jurisdiction to deal with the case in such a situation. It was, however, observed that the direction under subsection (9) to a Court of Session is not to adjourn the case in a similar situation if it is of the "opinion" that the party has had a reasonable opportunity for making an application. This being a question of opinion any judicial error in taking a decision, to my mind would be curable under section 537 of the Criminal Procedure Code. Coming to the cases decided in this Court I find that in Gahna v. The State (1968 P Cr. L J 109) and Rana Asif Ali v. The State (1968 P Cr. L J 1185) request for transfer made merely on the basis of legal errors was declined.
6. It was then contended on behalf of the petitioner that the trial Judge had impliedly conceded that he had not complied with the provisions of section 360 of the Criminal Procedure Code in not reading over the deposition of the-.Witnesses after the conclu--sion of their statements and this - had vitiated the trial and reliance has been placed on some authorities, which either were not attracted in the matter of the transfer application on that score or were not followed later on. He has referred to Hiralal Ghose v. King-Emperor (a I R 1924 Cal 889.) and In re : Nalluri Chanchiah (20 Cr. J 379) wherein it was held that violation of the provisions of section 360, Cr. P. C. Were not curable sunder section 537 of the Criminal Procedure Code and vitiated the -trial. The first men-- tioned authority is directly on this point, while the second relates to a case under section 193 of the Pakistan Penal Code wherein it was observed that a conviction under this section would not be sustainable if the deposition, after it had been completed, had not been read over to the witness and acknowledged by him to be correct.
He hail, also referred us to Ramdhari Singh and others v. Emperor (19 Cr. L J 169) and Taj Mohd. v.
Emperor (AIR 1928 Lah. 125) which are also on the same point. This view, however, was dislodged by their Lordships of the Privy Council in V. M. Abdul Rahman v. King Emperor (AIR 1927 P C 44) wherein it was held that a mere omission or irregularity to comply with section 360, Cr. P. C. "unaccompanied by any probable suggestion of any failure of justice having been occasioned thereby is not enough to warrant the quashing of a conviction. The same view was expressed in an earlier case Sondi Singh and others v. Sri Govind Singh and another (AIR 1924 Pat. 786) and later adopted in Jagannath v. Emperor (AIR 1927 All. 754(2)) and when confirmed in Bhagwan Singh, v.
The State (AIR 1952 SC 214). In the last mentioned case their Lordships went a step further in observing that where the certificate of the Committing Magistrate endorsed on the deposition sheet states that it was read out to the witness and was admitted by him to be correct, the Court is bound to accept it as correct. This view was endorsed by their Lordships of the Dacca High Court in All Anam v. Ibrahim Khandkar and others (PLD 1931 Dacca 118). In this case even there was no certifi--cate of the Magistrate to that effect and the deposition was accepted as correct.
Learned counsel for the petitioner had also relied on Eusuf Ali v. Emperor (AIR 1933 Cal. 190) for the proposition that a deposition can be presumed as correct under section 80 of the Evidence Act only when it has been taken down in accordance with law. Of course there can be no dispute about this proposition as the difference between a deposition properly recorded in accordance with the relevant provisions of law and that suffering from some procedural emission is merely this that whereas the former proves itself by the mere force of presumption available under section 80 of the Evidence Act and the latter requires proof, as observed in Tunya v. Emperor (20 Cr. L J 506): In this case the accused was a witness in a Sessions trial at the close of which the Judge directed his prosecu--tion for giving a false evidence. He was brought to trial for perjury, but it was found that his deposition had not been read over to him by the Judge as required under section 360 of the Criminal Procedure Code, so the trial Magistrate holding the deposition as inadmissible in evidence discharged him, but on revision (by the State) it was held by the Chief Court of Burma that the deposition should not have been treated as a nullity merely because of the irregularity is not reading it over to the deponent as could be proved by other evidence that it had been read over to him and admitted to be correct. The same view was followed in Koli Bhima v. State (AIR 1952 Sau.
7).
7. The position that emerges from this scrutiny of the allega--tions made by the petitioner, is that most of these appear to be incorrect. It will not be out of place to mention here that Mr. Mahmood Akhtar, Advocate of Lyallpur, who represented the petitioner at the trial was present in the Court at one of the hearings, when the comments submitted by the trial judge were being examined and I enquired from Mr. Abdur Rahman, the senior counsel in this petition, if Mr. Mahmood Akhtar would endorse these allegations. I was told that he would consult him and if possible submit his-affidavit which in fact, was put in on a subsequent hearing and forms part of this record. It relates only to the discovery of the parcel of the teeth and bones and the request of Ghulam Farid P. W. To read over the "WHOLE" state--ment to him. On the first point he has supported the learned Judge that at the end of the statement of Muhammad Fazal P. W. It was pointed out to him (the Judge). That the parcel had been traced out and the prosecution may be allowed to get these articles identified but the learned Judge demanded a written application for proper orders in the matter. On the second point 'he has stated that after the statement of Ghulam Farid P. W. Was closed a request was made by the witness to read the "WHOLE" of the statement to him, but the learned Judge observed that whatever correction was pointed out by the witness had been made and there was no need for any further step in this behalf. This exactly is, what the learned Judge had stated in his comments about these to allegations. The fact that Ghulam Farid P. W. Had offered to make a correction in his deposition was an eloquent testimony to the assertion of the learned trial Judge that he had been recording the statement of each witness in such a manner that every word of it was being followed by them and they- were able to offer corrections where they found it necessary which was never refused. The local counsel of the petitioner Mr. Mahmood Akhtar has made no reference in the affidavit about the other allegations, which would indicate that he did not support them. In rebuttal the respondents have put in affidavit of the to defence counsel, who have fully supported the stand taken by the learned trial Judge 'in his comments.
8. I am now left with the technical objection taken about the conduct of the trial and from the case-law referred to above it is quite clear that erroneous view of law or an omission to comply with some procedural formalities in conducting the trial by itself did not vitiate the proceedings. In fact it has not yet concluded and the alleged errors or omissions can safely be rectified during the remaining trial since they had come to the notice of the learned Judge and there are ample provisions in the Criminal Procedure Code for that purpose, so there is no question of any prejudice or failure of justice in this case.
In taking this view of the matter, I am not in any manner encouraging non-compliance with the prescribed procedure for a trial, much less the provisions of section 360 of the Criminal Procedure Code, the object of which is to ensure the accuracy of the record of the evidence led in a case and preserve its sanctity for all intents and purpose. The saving clauses of section 537, Cr. P. C., are not to be understood as authorising the Courts to commit irregularities which might not occasion a failure of justice, so any short circuiting of the mode of recording evidence would be strongly disapproved.
This Court has been jealously guarding against wanton disregard of mandatory provisions of law and procedure to ensure fair administration of justice so as to sustain the confidence of the public in the machinery enlisted with this arduous task, but such judicial errors which are not likely to prejudice the case of a party have to be ignored.
9. It was then urged that even if the procedural error, or omission had not vitiated the trial the attitude of the learned Judge was sufficient to create a reasonable apprehension in the mind of the petitioner that he would riot get a fair trial in his Court, but this assertion is not well founded especially when the bona fides of the learned Judge had not all been questioned in the petition.
Anyhow, the above detailed history of the case could never justify its transfer at this late stage which would reveal that the petitioner had contested the original transfer of the case from the Court of Sessions Judge, Lyallpur (when the accused-respon--dents filed a petition for that purpose) mainly on the ground that a large number of prosecution witnesses had already been examined, He even went over to the Supreme/Court to get the matter re-opened after this Court had its transfer to the Court of this learned Judge. The same ground is now available to the respondents as on a second trial before him, the evidence of no less than 23 prosecution witnesses has again been completed and its retransfer to any other Court would prolong their agony as they are already in judicial lock-up for about to years and nine months now. This case was registered on 13th February 1968, and the progress of the trial has already been held -up thrice, the last adjournment dating back to 10th of June 1969. In case of transfer, the clock will have to be put back and further inordinate delay would occur in the disposal of the case.
There is yet another aspect of the case which requires con--sideration, that the petitioner being a private complainant, although competent to move for the transfer of the case being an interested party, but the fact that it was instituted on a police report and its prosecution is in the hands of the Public, Prosecu--tor, who does not appear to have any grievance about the proceedings, called for exceptionally strong ground to justify transfer as was held in Sardar Shah v. Gurdit Singh (AIR 1934 Lab. 612). Learned counsel for the State has informed me that local authorities have expressed no dissatisfaction with the conduct of the trial in the Court of this learned Judge and he was only interested in opposing the connected quashment petition filed by the petitioner and the bail application filed by the respondents, if admitted to bearing by this Court.
In spite of it all the contentions raised by the petitioner have been quite closely scrutinised and found misconceived. The apprehension of the petitioner based on technicalities that he would not get, a fair trial as discussed above is not a good ground for the transfer of the case. It would even otherwise be inexpedient to put so much premium on the whims and vanity of a private complaint in the case. It would rather be paving the way for a fustedious litigent to fabricate a few fallacious and frivolous objections to the proceedings pending before the lower Courts which have to be turned down by the judicial officers in accord--ance with law, and then move this Court for transfer and thereby implead the progress of the case much to the distress of the opposite-party.
Taking this view of the matter,' I dismiss this petition and direct the Additional Sessions Judge, Lyallpur, to proceed with the trial and expedite its disposal giving it priority over all other cases on his file so that he can finish it before the close of the year, with intimation to this Court.