' This is an application moved by Qazi Muhammad Irshad and 4 others petitioners for the transfer of Cancellation Application No,146/4-C captioned Mst. Suriya Bibi v. Qazi Muhammad Irshad and others from the Court of Mr. Shamsher Ali Khan, Additional Sessions Judge, Abbottabad to some other Court of competent jurisdiction.
2. The facts necessary for the disposal of this application are that an occurrence took place as alleged on .31-10-2000 at 2-45 p.m., Near Rehmat Memorial Hospital, Sikandar Abad in consequence of which a case under sections 365/457/427/147/148/149, P.P.C. Was registered against the petitioner at Police Station Cantt. Abbottabad vide F.I.R. No,887, dated 31-10-2000. On the same day another case was registered under sections 506/452/148/149, P.P.C. At the instance of petitioner No,1 against Saleem Baig and his sons at Police Station Mirpur, Abbottabad vide F.I.R.
No,727, dated 31-10-2000. In both the cases, petitioners on the one hand in F.I.R. No,887 while Saleem Baig and his two sons in F.I.R. No,727 on the other hand, were released on bail on basis of compromise by orders, dated 4-12-2000 and 2-12-2000 respectively by Judicial Magistrate, Abbottabad. Notwithstanding, the respondent moved an application on 21-2-2001 for cancellation of bail granted to petitioners in the Court of Additional Sessions Judge, Abbotabad. Likewise the petitioners also filed application under section 497(5), Cr.P.C. For cancellation of bail allowed to Saleem Baig and his sons on 21-3-2001. In both the applications next date of hearing was fixed for 19-6-2001. It appears that on 13-6-2001 Qazi Muhammad Irshad one of the respondents in the abovementioned application made by Saleem Baig and others, did not appear in Court and sent application seeking exemption from personal appearance on the ground of indisposition. The application was placed on file with the remarks that no such applications will be entertained in future.
3. Messrs Akbar Khan Swati and Mirza Abdullah Jan, Advocates appeared for the petitioners and attempted to argue that the request of their client Qazi Muhammad Irshad was declined without any justification in total disregard of the fact that the petitioner was a heart patient and had recently undergone open heart surgery and that in view of the apparent hostile attitude of the learned Additional Sessions Judge, Abbottabad expressed at the time of the submission of the application, the petitioners do not expect fair treatment at the hands of the Court concerned. To support the pleas, reliance was placed on cases reported as Akhtar Ali v. The State PLD 2001 Kar. 14 and Haji Khawar Saleem v. The State, 2001 SCM R 905.
4. Controverting the arguments addressed on behalf of the petitioners, Mr. Sabir Hussain Tanoli, Advocate for the State assisted by Sardar Nasir Aslam Khan and Sardar Muhazzam Khan, Advocates for Mst. Suriya Bibi, respondent contended that the apprehensions expressed on behalf of the petitioners are unfounded and no ground for transfer has been made out. The learned counsel added that the transfer application has been moved with sole object to prolong the agonies of the respondents and to delay the matter as long as possible. To augment the submissions, reference was made to cases reported as Ghulam Sabir and 12 others v. The State 1986 PCr.LJ 380 Lahore, Umar Farooq v. The State 1992 M LD 1820 and Shah Jehan v. Special Judge, Anti-Corruption and another 1992 PCr.LJ 1982 (Karachi).
5. Admittedly, the applications of the parties seeking cancellation of bail granted to each other are pending disposal in the Court of Additional Sessions Judge, Abbottabad. The arguments on the applications were heard and matter was fixed for announcement of order on 19-6-2001 when the petitioner submitted an application on 13-6-2001 seeking grant of exemption from personal appearance. The application was placed on the file with the remarks that no such applications will be entertained in future. These remarks have caused annoyance to the petitioner and according to the learned counsel for the petitioner, the application was thrown away with anger by the learned Additional Sessions Judge, Abbottabad on account of which the petitioner entertains legitimate apprehension in his mind that the learned Court is "biased" and he will not get fair and impartial treatment.
6. After hearing the arguments and submissions of learned counsel for the parties in the light of the material on file and comments of the learned Additional Sessions Judge, Abbotabad I find that keeping in view the attending circumstances and the apprehension entertained in the mind of the petitioner, the matter be transferred to some other Court of competent jurisdiction. It is well-settled law that transfer of a case pending in a competent Court could not be claimed as matter of routine or at the wish of any of the parties unless it was apparent on the face of the record that party seeking transfer could not get fair and just treatment/trial. However, as the serious ailment of the petitioner has not been taken into account and his request for grant of exemption from personal appearance has been declined with the direction to hesitate to move such applications in the future, I find that this circumstance is sufficient to furnish strong basis for entertainment of an apprehension by the petitioner that he may not be fairly treated. The view I have taken is not without considerable authority. In the case of Muhammad Nawaz v. Ghulam Kadar and 3 others reported in PLD 1973 SC 327, the following observations were made:-- ' "That the transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter. It is a paramount importance that parties arraigned before 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 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 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."
7. In the wake of above discussion I consider it appropriate and in the interest of justice to accept the transfer application and grant prayer of the petitioner. Resultantly, the applications of the parties for cancellation of bail, pending before the learned Additional Sessions Judge, Abbottabad are withdrawn from his file and made over/transferred to the Court of learned Sessions Judge, Abbottabad for disposal. The transferee Court shall dispose of the applications on 14-7-2001 positively. The parties shall appear there on the aforesaid date.