1. FOR HEARING OF M.A. NO.213 OF 1995 ' By consent the main application is also taken up for hearing.
2. ' This application for transfer has been moved on three grounds, firstly, that the trial Court had examined a witness on 21-3-1995 on which date the counsel for complainant had sent an application for adjournment. Secondly, that in this case a bail application was moved for accused which was dismissed as withdrawn and not pressed on 13-11-1994 whereas second bail application was moved on 10-4-1995 which was granted by an order passed on 12-4-1995 although no fresh grounds had occurred. The third ground urged is that the applicant states that his two sons who are witnesses in the case are residing at Karachi and they apprehend danger to their lives at Nawabshah.
3. ' Miss Nasim Akhtar, learned counsel appearing for respondents Nos.1 to 4 and Mr. Allah Bachayo Soomro learned Advocate for the State have vehemently opposed this application on the grounds that this application has been moved with the intention to protract the proceedings as the applicant has not come to Court with clean hands and the only object of the applicant is to delay the proceedings and subject the present respondents Nos.1 to 4 to unnecessary harassment.
4. ' I have considered the submissions of the learned counsel for the parties. Now I take up the first ground urged by the counsel for the applicant.
5. ' He has argued that on 21-3-1995 Magistrate Mr. Sehar was present and he was examined by the trial Court in spite of an adjournment application sent by the Advocate for the complainant. This shows the bias of the Judge. The facts as are revealed from the case diaries would show that the first witness was examined on 29-11-1994. He is Medical Officer. On this date complainant was also not present but no grievance has been raised against recording of the evidence of this witness. As regards the evidence of the witness, it may be observed that in this case the charge was framed on 12-9-1994 and in spite of repeated efforts neither the complainant himself attended the Court on all the subsequent dates for recording his evidence nor he produced his witnesses from Karachi.
6. Similarly the official witnesses were not being produced. However, with great difficulty the attendance of the said Magistrate who was posted at Gharo was procured on 21-3-1995 and his statement was recorded. Of course the complainant's Advocate had sent an application for adjournment but in these circumstances the case could not have been adjourned. Even otherwise the evidence of the said Magistrate was to be got recorded by the prosecutor and not by the Advocate for the complainant. The Advocate for complainant was not supposed to cross-examine the said witness or do any other act except for assisting the A.P.P. In such circumstances, I cannot agree with the contention of the learned counsel as the trial Court has rightly proceeded to examine the said witness.
7. ' The second ground urged by the learned counsel for the application is that in this case a bail application was initially moved on behalf of the accused which was withdrawn and was accordingly dismissed as such. However, a second bail application was moved on 10-4-1995 which was granted on 12-4-1995. The contention of the Advocate for complainant is that this second bail application was moved without any fresh grounds and as such the complainant apprehends the complicity of the trial Judge with the accused party. As against this Miss Nasim Akhtar has pointed out that during the period when the first bail application was withdrawn and second bail application was moved two very important witnesses i,e, Medical Officer and the Magistrate who recorded confession were examined and the second bail application was based on fresh grounds arising out of the evidence of these two witnesses. She has further pointed out that after the grant of this bail application the complainant had moved an application for cancellation of bail before this Court which application was rejected by my learned brother Rana Bhagwan Das, J. It may be observed that in the first instance the present applicant has suppressed these facts in his transfer application while it may be observed that in such circumstances the bail is granted on fresh grounds which order has also been confirmed by a learned Single Judge of this Court. Accordingly, no fault can be found with the order granting bail by the trial Court. As such, this plea taken by the learned counsel for the applicant is not only devoid of any force but also is not tenable specially when such facts were suppressed from this Court.
8. The third ground alleged by the learned counsel for the applicant is that his two sons who are witnesses in this case are residing at Karachi and they apprehend danger to their lives if they come to Nawabshah. Mere oral statement would not be sufficient in this case as no particular instance has been cited nor any affidavit of his two sons is placed on record.
9. ' Miss Nasim Akhtar, learned counsel for the respondents has submitted that it is not every case where an order for transfer of proceedings is to be passed merely on apprehension of the party but the 'reasonableness of the apprehension is to be assessed and so also it is to be seen as to whether such application has been moved with bona fide intentions. In the case of Muhammad Nawaz v. Ghulam Qadir PLD 1973 SC 327 their Lordships have laid down certain tests. It has been observed in this case that it is of paramount importance that parties arraigned before Courts should have confidence in their impartiality. In the same case it has been observed that 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. In the present case, it may be observed that the facts discussed above would show that there is hardly any reasonableness. Not only this but it is pointed out by Miss Nasim Akhtar that the first telegram was sent by the applicant on 20-9-1994 seeking _ transfer of this case on different grounds. She has also pointed out that in the present case, the case diaries would show that the complainant himself has never attended the Court although he is resident of Nawabshah. Being complainant he would be the first witness to be examined in the case but the trial is being protracted deliberately as he has remained absent and it is only on 21-3-1995 when his Advocate found that the Court is to examine witness that an application was given for adjournment and also that the complainant thereafter attended the Court only on 12-4-1994 on which date the order granting bail was passed. Obviously the complainant moved an application before the trial Court on 12-4-1995 only with the mala fide intention to prevent the trial Court from passing such order.
10. ' Miss Nasim Akhtar, learned counsel for the private respondents has also contended that after the first telegram was moved against the trial Judge on 20-9-1994, the process was issued to the complainant on 15 occasions to attend the Court in respect of the said telegram but he did not attend.
11. In these circumstances, it is obvious that the applicant has moved this application with mala fide intention and has not come to Court with clean hands. I find no merit in this application which is accordingly dismissed along with the main transfer application.