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Criminal Transfer Application No. 1 of 1977, decided on 28th February 1977.

---S. 526‑Passing of a wrong order or violation of certain procedure‑By itself not sufficient for transfer of a criminal case‑Trial Court, however, failing to record a portion of statement suitable to applicants, and on making application by counsel to move for transfer of case, Court issuing threats to counsel for proceeding against him for contempt and also sending for Police--- Maxim that justice should not only be done but seem to be done, held, applicable to circumstances of case‑‑Transfer of case ordered. [Maxim].

S. Sami Ahmed for Appellant.

S. Murtaza Hussain for the State.

Date of hearing: 28th February 1977.

The application is supported on two grounds. First of all that the learned Additional Sessions Judge had violated some set rules of procedure in the conduct of the trial, and secondly that the Court had been tampered with, and, in spite of the fact that the attention of the learned Additional Sessions Judge was drawn to the same, be had evinced no interest in the matter,

2. The first contention hardly deserve any serious consideration, because the passing of a wrong order, or the violation of certain procedure, by itself, will not be sufficient to transfer 'a case. I would not be very much impressed also by the fact that the learned Additional Sessions Judge had argued to accept a number of challans in the case; because it will still be open to the defence to take advantage that could under the circumstances, be available to them. However, it appears that there has been at least one very regrettable incident during the proceedings. It has been stated by Mr. S: Sami Ahmed, learned counsel for the applicants, and his statement was recorded by my Lord the Chief Justice at the time of admission, that the learned Additional Sessions Judge had failed to record a portion of the statement of a witness, which was suitable to the applicants. The learned Additional Sessions Judge in his comments has stated that he has been faithful to the record. It is further alleged that there was a threat for proceeding in contempt against Mr. S. Sami Ahmed. The fact, that he had deposited Rs. 200 with the Court and thereafter met Mr. Ali Madad Shah, the Sessions Judge, Karachi, has not been disputed. There is also the fact that an application for contempt had been filed by Mr. S. Sami Ahmad against the learned Additional Sessions Judge. Mr. S. Sami Ahmed further states that, though he had, in view of the attitude taken by the learned Additional Sessions Judge, withdrawn himself from the case, yet, inspire of this, the learned Additional Sessions Judge, did not choose to stop the proceedings at that time. He also states that the learned Additional Session Judge had asked the policemen to be sent for, and there is no specific denial of this. Looking to the totality of the happenings, rather unfortunate in nature, and the maxim that justice should not only be done, but seem to be done. I am of the opinion that the case should proceed before another Judge. I will, therefore, allow the application. It will be much better if the case is tried by the learned Sessions Judge himself, though it will be open to him to pass it on to some other Additional Sessions Judge, apart from] Mr. Muhammad Yousuf Memon.

Application allowed.

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