' Muhammad Boota, Zulfiqar and Mubarak Ali, accused of offences under section 302/324/148/149, P.P.C. Vide F. I. R. No, 184/92 dated 14-5-1992, have petitioned under section 526, Cr.P.C. For transfer of their case, pending in the Court of Mr. Muhammad Aslam Khan, learned Additional Sessions Judge, Rahimyar Khan.
2. It appears essential to give brief resume of the facts in order to appreciate this application.
Ghulam Mustafa son of Ghous Bakhsh Sulangi of Chak No,122/P, Tehsil Sadiqabad, District Rahimyar Khan lodged a complaint with the police on 14-5-1992 at about 8-30 a.m. That one Yasmin daughter of Muhammad Yaqoob had married to Yasin, a cousin of the complainant against the will of her parents. A case was accordingly registered for abduction against Yasin and a few others.
On the crucial date Yasin, Yasmin and their other relatives were proceeding to the District Courts in connection with their pre-arrest bails. When their wagon arrived near Rashidabad, the present petitioners alongwith others, while armed with deadly weapons laid ambush, stopped the wagon by brusting its tyres, entered into the wagon and resorted to firing as a result of which Luqman and Hanif died and 7 other persons were injured. Mst. Yasmin was dragged out and was later on murdered , for which a separate case .F.f.R. No,99/92 at P.S. Saddar Sadiqabad was registered.
3. This case was entrusted to Jan Muhammad Ilyas, the then Additional Sessions Judge, Rahimyar Khan. The complainant side did not feel satisfied with the way the learned Judge was proceeding with the case and moved an application for its transfer. The High Court accepted the plea and transferred the case to Mr. Muhammad Aslam Khan, learned Additional Sessions Judge, vide order dated 3-8-1995. It is also noteworthy that through a separate criminal miscellaneous petitioner had asked for bail which was refused by my learned brother, Tassaduq Hussain Jilani, J. But the trial Court was directed to dispose of the case within the given time.
4. It is submitted by the learned counsel for the petitioners that notwithstanding the successive directions from this Court, the learned trial Court has not been able to conclude the trial and the petitioners and 11 others are languishing in jail for over 3-1/2 years; that the case was registered at the instance of the complainant when he was accompanied by Muhammad Azeem Sulangi an Advocate of Rahimyar Khan; one Azhar Lughari, M.P.A. Who happens to be a close relative of the learned Presiding Officer is friendly with aforesaid Azeem Sulangi and the trio have been seen meeting quite often in the chamber of the learned Judge; that despite repeated directions of the High Court, the learned Judge has not been able to dispose of the matter and it appears that he is prejudiced against them as he showed his threatening posture and declared that he will convict them in any event.
5. Comments of the learned Presiding Officer were sought. He has denied that any one had approached him or he was in any way influenced by the complainant party or the other side. As for delay, he has detailed certain circumstances/reasons for which he has not been able to dispose of the case as per directions of the High Court. In the end he has expressed no objection to the transfer of this case to any other Court of competent jurisdiction.
6. Arguments have been heard and record perused. It is submitted by the learned counsel for the petitioners that there have been three directions from this Court but the learned Judge has not been able to complete the trial. Learned counsel for the complainant, on the other hand, has pointed out that in reply to the assertions made in the transfer petition, the learned Judge has given his detailed reply stating the circumstances which prevented him from deciding the case within the given period, and they are reasonable, genuine and apt. According to the learned Presiding Officer, although the case file had been received in his Court on 3-9-1995, but per chance he was on leave. The case was put up on 17-9-1995 when he happened to be on tour to Khanpur and thereafter the learned Judge due to his personal predicament (serious ailment of his mother who was admitted to Nishtar Hospital, Multan) remained on leave on 27-9-1995, 12-10-1995 and 25- 10-1995. Consequently, the file was put up before him on 8-11-1995 and was adjourned to 6-12-1995 at the request of learned D.D.A. For filing the report of Serologist which had to be procured from Islamabad. Subsequently the matter was adjourned to a few dates for the production of this document without which the trial could not have been completed.
7.. As for relationship with Azhar Lughari, M.P.A. Who is allegedly a friend of Mr. Azeem Sulangi, Advocate, the learned Judge, as referred to above, has denied these allegations. In view of his clear denial there is nothing on the record to establish that there is any truth in the assertions made by the petitioners.
8. In support of his contentions, learned counsel for the petitioners has made reference to PLD 1973 SC 327, wherein principles governing the disposal of transfer applications have been laid down. It is argued by him that in the given circumstances of the case, the petitioners' apprehension that justice will not be done to them is reasonable because the very attitude of the learned Judge appears to be tainted with prejudice against them. It appears instructive to reproduce the relevant portion of the judgment of the Supreme Court: "It is of paramount importance that the parties arraigned before the 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 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."
8-A. In this case the learned Presiding Officer has denied that he was influenced by any M.P.A. Or any other person. He is positive that he will be able to do justice in any manner without showing any or favour to any side.
9. Learned counsel for the petitioners has also referred to the trend and tenor of the comments which displays feeling of anger of the Presiding Officer over filing of this petition. Learned counsel for the respondents, however, pointed out that like an honest officer; the learned Judge has placed the true picture before this Court and if a man of integrity is attributed certain unfounded allegations, he indeed feels bitter. This is what appears to be with this case. Nevertheless, the learned Judge possesses good reputation and will be able to do justice in any event. Nothing has come on the record to indicate that the learned Presiding Officer is either biased against the petitioners or has any inclination towards the complainant. Although in the selection of his words in reply to the assertions made in this petition, the learned Judge appears to be little stung by the allegations levelled against him, nevertheless, in view of the trust reposed in him by this Court in various cases, he is expected not to fall short of the balance and should foster justice without fear and favour and without any sort of prejudice against either side.
10. A Judge is expected to remain composed in face of insinuations and is supposed to do justice to the litigants because it is one of the most sensitive and most sacred duties cast upon him. The slightest deliberate deviation from the correct path may render him severally accountable before the Almighty. It would be instructive to refer here to the views of Imam Nawawi, a celebrated author of Minhaj Et Talibin (A Manual of Muslim Law) at page 504 of 1914 Edition. The author writes: "It is blamable in a Judge to deliver a judgment when he is angry or hungry or in a state of excessive satiety or in general when he is in any physical state likely to trouble his mind."
11. The assertions made in the petition do not appear to be founded on reasonable apprehension, as such, the petition is hereby dismissed. However, the learned trial Judge is expected to decide the matter calmly and cooly, notwithstanding, the allegations levelled against him keeping in view the sublime traditions of the judiciary. He shall dispose of the case before 31st of March, 1996 even if he has to proceed on day to day basis, under intimation to D.R.(J) of this Court.