ORDERTASSADUQ HUSSAIN JILANI, J.- This is an application under section 526 Cr.P.C, seeking transfer of the following connected criminal matters from the court of Mr. Talib Hussain Balocb ASJ Sargodha to any court of competent jurisdiction:-
(i) Crl. AppealSanaullah Vs. The State.(ii) Crl. RevisionSanaullah Vs. Mushtaq Shah etc.(i.e) Crl.
RevisionMushtaq Hussain Vs. Sanaullah.
The matters were transferred to the said ASJ pursuant to an order of no learned Sessions Judge dated 8.8.1994.
2. The learned counsel for the petitioner inter alia contends that:-
(i) the learned Sessions Judge had no jurisdiction to pass the impugned order and to transfer the cases to another learned ASJ as the matters had been partly argued on 8.8.1994;
(ii) in terms of section 528(1-A) of the Cr.P.C., the learned -Sessions Judge had power to transfer a case from one learned ASJ to another but prior to the commencement of the proceedings in these cases transfer of which is section; (i.e) the application of respondents which is Annexure-G did not disclose any tenable ground to justify the transfer.
3. The learned counsel for the respondents, on the other hand, defends the transfer order on the grounds that:-
(i) bar to the powers of Sessions Judge is attracted only if the hearing before ASJ is complete;
(ii) the petitioner has challenged the transfer order through an application under section 526 Cr.P.C, which is not maintainable.
4. I have heard the learned counsel for the parties and have also perused the documents attached with the petition.
5. The last interim order of the learned Additional Sessions Judge where the connected matters were pending reads as under:- if j, /'$ j, f tt i? Jjf{{URDU}} 6. The import of section 528(1-A) Cr.P.C, is very clear and it reads as under:- "At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may re-call any case or appeal which he has made over to any Additional Sessions Judge".
7. . In view of this, the learned Sessions Judge had no power to direct transfer of these cases as arguments had partly been heard and the respondent's counsel had sought an adjournment to engage some other counsel. Even otherwise, a bare reading of Annexiire-G which is the transfer application filed by the respondent before the Sessions Judge, shows that the transfer was being sought merely on a suspicion that the opposite party had allegedly approached the learned trial court. This suspicion was not supported by any credible justification' or material. Court proceedings cannot be interfered with merely on suspicion and on the whims of a party. The learned Session Judge should have been whether the apprehension of not getting a fair trial is an apprehension that a reasonable man might justifiably be expected to entertain. In view of the above I am afraid the order dated 8.8.1994 passed by the learned Sessions Judge Sargodha is not tenable in law for following reasons:-
(i) proceedings in appeal had commenced and arguments had partly been heard. The bar contained in Section 528(1-A) of the Cr.P.C, was fully attracted:
(ii) it does not satisfy the test laid down by the Hon'ble Supreme Court in:-
(a) Muhammad Nawaz Vs. Ghulam Qadir (PLD 1973 Supreme Court 327);
(b) Daud Iqbal Pervaiz Vs. The State (PLD 1990 Supreme Court 705).
8. As the order is manifestly against the mandatory provisions of law, I convert this application into a revision under section 439 of the Cr.P.C, and set- aside the impugned order. Both the parties jointly request that owing the peculiar back-ground of these cases, these cases be transferred to some other District.
9. As per joint prayer of the parties as also the back-ground of mutual discord as to which court should hear these matters, I think it would be in the interest of justice and general convenience of the parties if these matters are transferred to some other District.
10. In this view of the matter cases mentioned in para 1 of this order are hereby transferred from the court of Mr. Talib Hussain Baloch, Addl. Sessions Judge sargodha to the court of learned Sessions Judge Jhang who shall himself hear and decide these cases within a period of three months. The parties shall appear before the learned Sessions Judge Jhang on 13.9.1994.
11. This application is hereby disposed of in the above-noted terms.