1. HAMOODUR RAHMAN, C. J-This appeal, by special leave of the Court, is from an order of the learned Chief Justice of the Sind & Baluchistan High Court, dated the 28th of Novem--ber 1972, rejecting an application made by the petitioner under section 526 of the Code of Criminal Procedure for the transfer of a case under section 145 thereof from the Court of the Sub. Divisional Magistrate, Sadar, Sukkur, to the High Court.
2. The application for transfer contained a lengthy narrative of the various facts and circumstances forming the background of the case, but it is not necessary to repeat them here. For our present purposes, it would suffice to state that the proceedings under section 145 of the Code of Criminal Procedure arose out of the alleged forcible seizure of the lands and the residential bunga--low, belonging to Air Marshal (Rtd.) M. Asghar Khan and situate near Rohri, in the Sukkur district, by the local Secretary of the Pakistan Peoples Party and his associates as an act of political vendetta against the owner, who is the President of a rival political party called the Tehrik-i-Istiqlal Pakistan.
3. The petitioner, in his capacity as the Kamdar or the Manager of the Air Marshal made a first information report of the incident on the 10th of July 1972, at the local Police Station, which, however, did not take any steps to investigate the matter. In these circumstances, he moved an application under section 145 of the Code of Criminal Procedure in the Court of the Civil Judge and First Class Magistrate, Rohri, on the 28th of July 1972. The Magistrate entertained the apple--cation and issued notices to the parties for the 9th of August 1972, but on that date it was learnt that the District Magistrate of Sukkur had transferred the case to the Sub-Divisional Magistrate. The latter fixed the 7th of September 1972, for the hearing of the case. On that date the Advocate for the petitioner asked, for the interim attachment of the properties. Notice of this application was given to the opposite side for the 14th of Septem--ber 1972, but the case was not taken up on that date and not order of attachment was passed, although the learned counsel for the petitioner was present with his witnesses and a request had been made for their examination.
4. Apprehending that the local Magistracy would not be able to do justice in the matter in view of the personalities involved and the nature of the allegations made by the petitioner, a request was made that the case be tried by the High Court. The High Court at first called for a report from the District Magistrate concerned, and it transpired that the case was transferred from the Court of the Civil Judge and First Class Magistrate for the reason that he had not been empowered by the District Magistrate to deal with proceedings under section 145 of the Code of Criminal Procedure As regards the proceedings on the 14th of Septem--ber 1972, in the Court of the Sub-Divisional Magistrate, it was explained in the report that no progress could be made owing to lack of service on the other side and the absence of the com--plainant's witnesses. This last part of the report was found to be inaccurate by the High Court, as there was a recital in the relevant order for that date to the effect that the applicant's counsel had requested that the witnesses be examined.
5. While dismissing the transfer application, the High Court has observed that it could place no reliance on the general allegations made in the petition that the President of Pakistan was personally hostile to Air Marshal (Rtd.) M. Asghar Khan, nor could it take judicial notice of several other statements made in the apple--cation regarding the political atmosphere prevailing in the Sukkur district. It has gone on to state that the case having been adjourned from the 14th to the 28th of September 1972, and the petitioner not having moved the High Court until the 27th of September 1972, at would appear that he did not really have any apprehension on the 14th of September or soon thereafter, and it would, therefore, be profitless in these circumstances to specu--late as to why the application was brought at all.
6. Leave to appeal was granted in this case to examine the question whether the High Court had exercised its discretion on sound judicial principles in refusing the prayer for the transfer of the case, keeping in view the personalities involved, the nature of the allegations levelled and the well- accepted principle that justice should not only be done but should also appear to be done. It was also observed that another question arising for examination would be whether the High Court had given due consideration to the fact that the postponement of the application for interim attachment tan view of the impending harvesting of crops disclosed a hesitancy on the part of the Magistrate to deal impartially with the case.
7. Mr. Manzoor Qadir, the learned counsel appearing for the petitioner, submits that the High Court was in error in ignoring not only the well-known facts of political life 9n Pakistan, but also the particular facts of the case in point. He contends that the inaction of the Police in investigating the matter of the for--cible dispossession of the Air Marshal from the 242 acres of agricultural land and a valuable residential bungalow, and the hesitancy of the learned Magistrate to pass even an interim order for the attachment of the properties clearly raised a reason--able apprehension in the mind of the petitioner that the local Magistracy would not be able to do justice in the matter, and, that he could look for even-handed justice only to the High Court. The learned counsel submits that it was hardly necessary, for the purposes of the transfer application, to adduce evidence In support of allegations of political hostility between the Air Marshal and the leadership of the rival political party.
8. The learned Assistant Advocate-General, Sind, appearing for the State, strenuously opposes this appeal on the ground that the mere fact that on a particular date evidence was not recorded by the Sub-Divisional Magistrate, or an interim attachment was not ordered, would not show that the Magistrate was in any manner biased against the petitioner, or that he was unable to do justice: between the parties. He submits that his instructions are to deny the existence of any personal hostility between the owner, of these properties and the President of Pakistan.
9. The principles which ought to govern the disposal of transfer applications of the present kind have been spelt out by the superior Courts from time to time. Reference in this behalf may be made to Khawaja Ahad Shah v. Mst. Ayshan Begum (77 I C 762), Mula Naramma v. Mula Rangamma (AIR 1926 Mad. 359), Gopal Singh v. Emperor (AIR 1928 Lah. 180), Sikandar Lai Para v. Emperor (AIR 1928 Lah. 975). Ry. Pratap Sinha Raja Sahib v. R. Srinivasagopolachariar(AIR 1926 Mad. 15), Satiandra Nath Sen and others v. Emperor (AIR 1929 Cal. 809), Asa Nand v. Emperor (130 I C 330), Gurdit Singh v. Kahan Chand (AIR 1934 Lab. 593), Girdhari Lai v. Ashfaq A.I Khan and another (AIR 1934 All. 448), Lalita Rajva rakshmi and another v. State of Bihar and another (AIR 1957 Pat. 198), Ghulam Qasim v.
10. Langra and others (PLD 1957 Pesh.109). Ghulam Qadir Khan v. The Stare (PLD 1957 Lah. 747).
11. Mahabat Khan v. The Stare and another (PLD 1960 Lab. 1187), Sardar Khan v. The State and another (PLD 1962 Kar. 77), The State v. Agha Badarudain (PLD 1962 Kar. 166). Abdul Aziz v. The State and another (PLD 1962 Lab. 56), Refatullah Pramanik and another v. The State and another (PLD 1965 Dacca 150), and Rahim Bakhsh v. Khalilur Rehman (PLD 1971 Lah 517-).
12. Although these cases deal with a wide variety of circums--tances and grounds urged for their transfer from one Court to another, yet certain well-defined principles of general application After clearly discernible we fully endorse the summing up of these principles by the High Court in the case of Rahim Bakhsh mentioned above, namely, that the transfer of a case from a Court Ka 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 arraigned 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 ensuring 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 prejudiced 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.
13. "One important object", as observed by Lush, J. In the famous case of Serjeant v. Dale ((1877) 2 Q B D 558), "is to clear away everything which might engender suspicion and distrust of the tribunal and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security". Thus where events have happened which, are liable to be misconstrued, it is better that justice should be done by a Court whose impartiality cannot be doubted.
14. Now, in the present case, the facts are that the owner of the properties in dispute is indeed the President of the Tehrik-i---Istiqlal Pakistan and, in that capacity, he has frequently criticised the functioning of the present Government headed by the Chair--man of the Pakistan Peoples Party.
15. He has alleged dispossession by the local Secretary of that party. Although, the lands in dispute and the residential bungalow standing thereon were alleged to have been forcibly taken away from the petitioner as long ago as the 10th of July 1972, no tangible steps have been taken by the local Police to complete the investigation of the main case, nor was any concrete step taken by the local Courts to give interim relief in terms of section 145 of the Code of Criminal Procedure, although an application in this behalf was made without loss of time. In these circumstances, it is manifestly clear that a reasonable apprehension must have arisen in the mind of the petitioner and his master that the local Magistracy at Sukkur would not be able to do justice between the parties. Accordingly, it is necessary that the matter should be dealt with by a Court, and as a level, which would inspire confidence in the mind of the petitioner and the owner of the properties that justice will be done in the cause, Irrespective of tire personalities and politics involved.
16. For the foregoing reasons, we would accept this appeal and direct that the case shall be heard by the High Court of Sind & Baluchistan, in the exercise of its extraordinary original jurisdiction. We would like to express the hope that this measure would also expedite the disposal of the case, which has already remained pending, for one reason or another, for such a long time.
…and 5 more citing cases