1. MUHAMMAD ROSHAN ESSANI, J.-By this Criminal Transfer Application under Section 526, Cr.P.C. The applicant Akhtiar Ali has sought transfer of Criminal Case No. 9 of 1999, Re: Akhtiar Ali v. Abdul Hakeem Mahar and others under Section 17/3, Offences Against Property (Enforcement of Hudood)
2. Ordinance, 1979 read with Sections 147, 148, 220 and 34, P.P.C. Pending before learned Additional Sessions Judge-Ill, Khairpur.
3. The brief facts of the case are that a direct complaint was filed by the complainant. The Trial Court after holding preliminary enquiry brought the matter on file and process was ordered against the respondents Nos. 2 to 6. The Trial Court proceeded with the case.
4. It is alleged that respondents/accused Abdul Hakeem is serving as Inspector in Excise Department.
5. He was found sitting in the Chamber of the learned Trial Judge, therefore applicant apprehends that the Trial Judge has been own over by the accused party and has received illegal gratification for their release. The evidence in case was recorded as per the dictation by the Trial Judge in shorthand. When copies of the deposition were seen by the complainant, he found that the evidence recorded in presence of the parties' was changed. Consequently, the complainant/applicant has no faith in the Court and apprehends injustice at the hands of the Presiding Officer of the Court.
6. The notice was issued to be respondents/accused 1 to 6 and also comments were called from the Presiding Officer of the Trial Court.
7. The Presiding Officer in his comments has denied the allegations levelled against him in the application. He has stated that since the complainant has lost confidence up him therefore case may be withdrawnfrom his file and the same may be transferred to some other Court.
8. I have heard Mr. Sahib Khan Kanasiro, learned counsel for the applicant, Mr. Mumtaz Ali Siddiqui, learned counsel for the respondents Nos. 2 to 6 and Mr. Sher Muhammad Shar learned A.A.-G. On behalf of the State. The latter two oppose the prayer of the applicant.
9. I have perused the material placed on the record and also given anxious thought to the arguments advanced by the learned counsel for the parties.
10. The perusal of the material placed on record shows that the applicant/complainant has lost faith in the Trial Court and the allegations levelled against.The Trial Judge, have not been controverted hy the respondents/accused by way of counter-affidavit or comments. Trial Judge himself has expressed in the comments that, since the complainant has lost confidence in him therefore case may be transferred from his Court.
11. In the case of Muhammad Nawaz v. Ghulam Kadir and 3 others, reported in PLD 1973 SC 227, it was observed by the apex Court that if there is a reasonable apprehension in the mind of the party that he will not get fair or impartial trial/justice, the Courts must transfer the case. It will be pertinent to reproduce hereinbelow the relevant observations of the apex Court for convenience sake;- "That the transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mfnd 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 duty 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 Saira Koser V. Dr. Liaqat Former ASP (Khawaja Muhammad Saeed, C.J) 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 reasonably be expected to have."
12. The observations made by Lush, J., in the famous case of Serjeant v. Dale, reported in (1877) 2 QBD 558, are reproduced hereinbelow:- "(1) is to clear away every thing 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 thatjustice should be done by a Court whose impartiality cannot be doubted."
13. In the case of Muhammad Arshad v. The State, reported in 1997 SCM R 949, it was observed by the apex Court as under:- "In order to make out a case for transfer, clear and cogent averment should be made which may lead to the conclusion that the conduct of the trial Judge is not proper and is prejudiced. The transfer will be justified if there is a reasonable apprehension in the mind- of a party that the Court would not be able to act fairly and impartially in the matter. Such impression should not be based on apprehensions or presumptions but should be substantiated with facts which tarnished the impartially of the Court."
14. Consequently, the case is withdrawn fronrthe file of the learned Ilrid Additional Sessions Judge, Khairpur and transferred to the file of learned Sessions Judge, Khairpur. The transferee Court is directed to dispose of the case as early as possible according to law.
15. The application stands disposed of.