1. This transfer application under section 526, Cr.P.C. Is filed on behalf of applicant Shah Jahan son of Muhammad Umar praying for the transfer of pending case (Special case No. 153/88) from the Court of learned Special Judge Anti-corruption Sukkur to any other Court of competent jurisdiction.
2. The applicant is a Drug Inspector. He has bean challaned in case FIR No.26/87 by the Ants- corruption Police. He is facing trial in the Court of learned Special Judge Anti-corruption, Sukkur for offences under section 161, P.P.C. Read with section 5(2) of Act, II of 1947. All the prosecution witnesses have been examined and the case of the applicant was at defence stage. It is stated that daring the crow-examination of one defence witness, namely, Mr. Khan Muhammad Jumani an ambiguity has arisen and the defence counsel wanted to clarify the same in "Re" which was not allowed. On the insistence of defence counsel to record his objection, it is alleged the learned Judge became infuriated. It is 'further alleged that the entire case 'had proceeded in an atmosphere of humiliation and harassment due to serious temperamental differences between the counsel and the trial Judge, as such the trial has not taken place in a free and fair manner due to harsh tone of the learned Judge. It is further alleged that the learned Judge has prejudiced the case by remarking that case will entail in the conviction of the applicant.
3. It is further alleged that on account of adjournment applications moved by the counsel; in which it vas alleged that the trial Judge comes late in the Court room after chit-chatting with his friends the learned Judge has reservations against the counsel also. It is alleged that on account of this bias, the applicant has apprehension in his mind that he will not got a fair and impartial trial, hence this application.
4. I have heard Mr. Abdur Rahman Bullo Advocate for the applicant and Mr. Zawar Hussain Jafferi learned A.A.-G. For the State.
5. Mr. Bullo has argued that the learned trial Judge is prejudicial against him and that he has prejudiced tire case of the applicant. He states there is now a genuine apprehension in the mind of the applicant that he will not get a fair mat. In support of his contention he has relied upon PLD 1973 SC 327.
6. On the other hand the learned AA.-G. Has opposed this application. He states that merely by giving an application of adjournment in which it is pointed out that the Judge comes late cannot create bias of Judge against the applicant. He further states that allegations are vague and no specific instances are quoted, as such, this application has no merits and it ought to be dismissed, It may also be noted, that in view of the allegations contained in the application, comments were called from the trial Judge. The said comments have been submitted and I have also gone through the same.
7. After applying my mind to the facts and circumstances of the case, I find that tare allegations made in this application are not only vague and general in nature, but on the contrary certain facts and circumstances have been deliberately suppressed by the applicant and his counsel, which shall presently explain.
8. According to the learned counsel, he wanted to clarify some ambiguity which had cropped up during the cross examination of a defence witness, which the learned Judge neither allowed nor recorded his objection, and on the insistence of the counsel, the learned trial Judge was infuriated.
9. Now if this is true, then, I fail to understand why the deposition of the said defence witness was not placed before this Court, so as to see what was the ambiguity and what clarification was required.
10. Even if such a situation had arisen, then the learned counsel should have made a proper application before the trial Court stating his objection, and then he could have obtained its copy to show this Court that objection was actually made and denied; but that was not done. Before this Court the learned counsel could have filed his personal affidavit to this effect, even that was not done.
11. The allegations that the trial Judge has become hostile, the whole case has proceeded in an atmosphere of humiliation and harassment and has not taken place in a free and fair manner, that the learned Judge has prejudiced the case and also asked the counsel to get the case transferred from his Court, all these allegations arc not only vague and general in nature, but these are of the type which can be made in every case by every accused.
12. 'At this stage I would like to explain what facts and circumstances have been deliberately suppressed by the applicant and his counsel, and under what circumstances the present transfer application has been filed.
13. In this regard it may be noted that regular trial of the applicant's case started in the trial Court in 1988. During the last three years or so, the entire prosecution evidence was recorded without any complaint on the part of the applicant. Thereafter came the defence stage and all the defence witnesses were examined again no complaints. Then the learned counsel filed an application under section 540. Cr.P.C. For calling further defence evidence. This application was heard by trial Court and disposed of by an order, dated 27-10-1991 rejecting the same. Against that order the applicant preferred Criminal Revision Application No. 62 of 1991 before this Court which was also dismissed by an order of this Court, dated 4-11-1991.
14. The factum of the filing of application under section 540, Cr.P.C. And its dismissal, thereafter filing of Revision and its dismissal by this Court all have been deliberately suppressed in this transfer application. The reason as to why these facts have been suppressed, in this transfer application arc, also very obvious. Because this Court was bound to detect and conclude that uptill the time of hearing of the Revision Application, the applicant and his counsel had no cause for complaint against the trial Judge. Moreover the Revision was dismissed by this Court on 4-11-1991, the final arguments were to be heard by the trial Court on 20-11-1991. So in between these two dates, there was no occasion for the applicant or his counsel to have any cause of complaint. It is therefore quite clear that in order to prevent this Court from detecting these facts and guaging the true picture, the same have been deliberately suppressed by the applicant and his counsel. The true picture has only come to light through the comments submitted by the trial Court.
15. It is also important to note that during the pendency of applicant's Revision Application, the proceedings before the trial Court were stayed. When the Revision Application was dismissed on 4- 11-1991 the stay was vacated and the trial Court had then fixed 20-11-1991 for final arguments. Now, what the applicant did, he filed the present transfer application on 3-11-1991 through his counsel, one day before the Revision was dismissed, and again obtained another stay order, which is still in force.
16. All the above circumstances clearly indicate that the applicant and his counsel, neither have any apprehension in their minds nor the allegations made by them in the application are true. Their only objective appears to be, not to allow the conclusion of the trial.
17. From the above discussion, I am of the considered view that the applicant has not approached this Court with clean hands and on this ground alone he is not entitled for any relief. Even otherwise, on merits also, no ground is made out for the transfer of the case. This application therefore has no merits and the same is accordingly dismissed.
18. N.H.Q./S-901/K