Find a Lawyer

Criminal Miscellaneous. No. 300 of 1956, decided on 21st December 1956.

S. 326‑Transfer of criminal cases‑Existence of an atmosphere hostile to accused‑ Good ground for transfer of case to another district‑‑Violent public demonstrations taking place in Court compound when accused brought to police lock‑up and mob demanding handing over of accused to them so that they could kill them‑Case, in circumstances, transferred to another district where a calmer and more rational atmosphere will prevail.

Sugnomal Tubilram v. Phatandas Relumal A I R 1936 Sind 237 and Haji Imamdino Haji Osman v. Emperor A I R 1941 Sind 39 not fol.

Serjeant v. Dale 2 Q B 558 and The King v. Sussex Justices, Ex parte: McCarthy, I K B 256 approved.

Roshan Lal v. Emperor A I R 1930 Lah. 954 and Amrit Lal v. Emperor 32 Cr. L J 1188 fol.

Allah Bakhsh K. Brohi and Khalid M. Ishaque for Petitioner No. I.

G. M. Shah for Petitioners Nos. 2 to 10. H. T. Raymond, Addl. A.‑G. for the State.

Date of hearing : 20th December 1956.

This is an application for transfer of a case, State v. Muhammad lqbal Shah and others, pending at the commitment stage in the Court of Mr. Ali Jawad City Magistrate, Karachi. A previous application, which sought to have the case removed completely out of the jurisdiction of the Karachi Bench, was heard by Kayani, J., who, on the 3rd of September 1956, passed the following order :‑

"At best it is a case for transfer from Karachi. It is for the Karachi Bench to decide where the trial should be held so as to secure a quiet atmosphere for the witnesses and the accused. I do not think a case is made out at this stage for transfer outside the Karachi Bench area. The petition should, therefore, be sent immediately for disposal to Karachi Bench. At the request of Mr. Mohammad Ali, with a view to expedit ing presentation, the petition is being handed over to him for presentation at Karachi.

In pursuance of the above order, the proceedings were returned to Karachi and come up before me for hearing yesterday (the 20th of December 1956).

Although in the present transfer application a suggestion was made that the Courts 'concerned in Karachi might not be in a position to maintain 'an impartial attitude; Mr. Brohi confined his arguments to the point that the attitude of the public in Karachi was so hostile to the petitioner that the witnesses and, at the stage of trial, the assessors, might be unfavourable influenced.

During the course of arguments, I asked Mr. H. T. Raymond, Public Prosecutor, whether, the existence of a hostile atmosphere, if established, would be a good ground for transfer, but he refused to concede the point, urging that it was the attitude of the Court trying the case that was alone to be taken into consideration. It is true that this view finds some support from a couple of Sind rulings cited by Mr. Raymond, Sugnomal Tabilram v. Phatanda Relumal (A I R 1936 Sind 237) and Haji Imamdino Haji Osman v. Emperor (A I R 1941 Sind 39), but with very great respect I find myself unable to accept it as an accurate exposition of the law on the subject. To my mind, the principle that should be followed is that laid down in the well known English case of Serjeant v. Pale (2 Q B 558), the relevant portion of which runs :‑

"The law does not measure the amount of interest which a judge possesses . . . . . . The law, in laying down this strict rule, has regard note so much perhaps to ' the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to' 'clear away everything 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 arid security."

Again, in case The King v: Sussex Justices ex parte : McCarthy (1 K B 256), it is remarked :‑

"A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done; but should manifestly and undoubtedly be seen to be done. . . Nothing is to done which creates even a suspicion that there has been an improper interference with the course of justice."

The proposition that the existence of an atmosphere hostile to the accused is a good ground for the transfer of a case has been accepted in a number of cases, of which it is sufficient to cite two, namely, Roshan Lal v. Emperor (A I R 1930 Lah. 954) and Amrit Lal v. Emperor (32 Cr. L J 1188). In the former Tek Chand, J, allowing the transfer, gave as his reason : "What has been stated above is sufficient to show that these cases have assumed an importance of their own, and that they should be tried in a calm and quiet atmosphere where all proper and legitimate facilities can be provided, both to the prosecution and the defence. Certain incidents have unfortunately taken place at Gurgaon, which rightly or wrongly lend colour to the idea that such an atmosphere does not exist at Gurgaon". In the other case Abdul Qadir, J., based his transfer order on the existence of material in the affidavits on the record showing that there was an atmosphere in Dera Ghazi Khan which either was unfavourable to, the accused or about which there were reasonable apprehensions: in his mind.

I have, therefore, no hesitation in holding that if the defence succeed in establishing the existence of an atmosphere hostile to the accused, a goad case for transfer is made out.

In support of his contention that such an atmosphere does, or at least did, exist, Mr. Brohi drew my attention to several documents. The first of these is an affidavit dated the 1st of September 1956 Mr. Khalid Ishaque, counsel for the petitioner, in which, inter alia, he alleges.‑

"As soon as the Police van bringing the petitioner and his co‑accused came into the Court compound, violent demonstra tions. took place, the people shouting that the accused should be delivered to them at once to be shot dead and or torn to pieces. Violent and filthy abuse was hurled at the accused and the C. L D. It was with great difficulty that the van carrying the accused was allowed to reach the Court lock‑up. When the accused were intended to be produced in Court, the crowd demanded that the accused be delivered to them for disposal and for three hours it was impossible to take the accused from the Court lock‑up to the Court room which is about 50 yards distance. It was only after several truck loads of police reinforcement had been summoned and extensive precautions against a possible riot were taken that the accused could be produced in Court. That so great was the public feeling against the accused that even I found it extremely difficult to see the petitioner, in the Court lock up. When I came out of the lock‑up, I was surrounded by a crowd of several thousand who threatened to do me violence saying zalimon ke vakil ko pakar lo.' With great difficulty I could manage to slip away and by mixing with other Advocates saved myself."

In his report on the allegations contained in the transfer applica tion, Mr. Ali Jawad, City Magistrate, before whom the commit ment proceedings were pending, does not admit that any danger of a breach of the peace existed; remarking

"My own impression of what happened was one of surprise at the considerable degree of restraint observed by the crowd, considering that such crowds are (excitable and capable of being misled into doing anything improper or violent."

This appreciation of the situation contrasts somewhat strangely with the following passage from the same Magistrate's order dated the 26th of July 1956:

"It appears likely that large crowds of people are likely to continue to collect here on subsequent dates of hearing also of this case. This will create a difficult situation from the point of view of late and order. It is not improbable that a contingency for resort to force may arise, and it would be necessary and desirable to avoid the same. Hence I consider it more expedient to hold the trial of this case on subsequent dates of hearing at the District Prison, Karachi.

The following extract from the issue of the Karachi newspaper "Dawn" dated the 26th of July 1956 also shows the view of situation taken by at least one section of the press :‑

"A crowd of ten thousand booed and jeered at nine policemen accused in the Noor Mohammad Mamon's case, were brought to the City Magistrate's Court yesterday morning. The people had occupied vantage points in the surrounding buildings and the Court. premises itself. The arrival of the green and red prison van, carrying the under‑trials at the Court, set off an unprecedented outburst of public resentment against the accused policemen. Abuses were hurled at them, so were also stray old shoes. Some people just spat to vent their pent‑up fury."

Other instances could be cited, but those already given are sufficient to show that, whatever may have been the atmosphere inside the Court room itself, that prevailing outside was far from favourable to the accused. Mr. Ali Jawad is of the opinion that interest in the case has now completely died down, but I am unable to share his optimism, and there can be no guarantee that the unruly scenes that took place at the, previous hearings of the case would not be repeated if further proceedings were taken in Karachi.

In these circumstances I consider that the interests of justice' require that the case be transferred to a district where a calmer and more rational atmosphere will prevail. The only question remaining is that of the future venue. Mr. Brohi strongly objected to the accused's being tried at Hyderabad, and asked that they should be sent either to Mirpurkhas, Sukkur or Nawabshah. Of these, Mirpurkhas is stated by counsel to be the most convenient. I accordingly direct that further proceedings in this case up to and including the stage of trial be held there.

Case transferred.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.