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Criminal Transfer Application No. 5 of 1977, decided on 2nd June 1977.

‑ S. 526‑Transfer of case sought on ground that Presiding Officer was once an accused in a criminal case pending in Court of petitioner when be was an Additional District Magistrate and petitioner had ordered process to issue against him‑Case transferred in interest of justice, in circumstances.

Ghulam Abbas Soomro for Applicant.

Agha Ghulam Ali for A: G. (Sind) for the State.

Date of hearing : 2nd June 1977.

This is an application under section 526, Cr. P. C., praying for the transfer of the proceedings instituted on a private complaint by respondent Dad Mohammad against the petitioner and two others under sections 218, 220, 343, 469 and 471/34, P. P. C. for allegedly wrongfully confining the said Dad Mohammad for failure to pay land revenue. The facts giving rise to this Transfer Application are rather unusual. It appears that in the year 1971, Mr. Ahmed Bux, who was then the Mukhtiarkar and F. C. M., Garhi Khairo, took proceedings against respondent Dad Mohammad on the basis of a report filed by Mukhtiarkar's Kotar, Mohammad Suleman son of Lai Bux, under section 107, Cr. P. C. In those proceedings, the said Dad Mohammad was remanded to custody for failing to furnish the required surety. A revision application challenging the said proceedings was filed in the Court of the learned Sessions Judge, Jacob abad, but in the meanwhile Dad Mohammad was discharged by Mr. Alvi and the revision application accordingly became infructuous. 1n consequence of these proceedings, Dad Mohammad filed a complaint not only against the Mukhtiarkar and F. C. M. Mr. Alvi, but also the present applicant, Ali Nawaz Shaikh, who then happened to be the Assistant Commissioner and S. D. M., Jacobabad, and who, according to Dad Mohammad, was instrumental in getting false proceedings under section 107 initiated against him. This complaint was originally made in the Court of the District Magistrate, Jacobabad, from where the case was transferred by the High Court to the Civil Judge and F. C. M., Shikarpur, by its order 13‑1‑1972. The learned Civil Judge issued process against tire applicant, who, in the meanwhile had ceased to be in service and had started practising as an Advocate, and Mr. Alvi, the learned Mukhtiarkar and F. C. M., who had initiated the proceedings against Dad Mohammad under section 107, Cr. P. C. Against the order directing issue of process, the petitioner and Mr. Alvi filed a revision application before the learned Sessions Judge, Sukkur, who transferred the same for disposal to the learned Additional Sessions Judge, Shikarpur. Against this order of transfer, the petitioner filed a Transfer Application to the Sessions Judge, on the ground that Mr. Abdul Jabbar Bachani, the learned Additional Sessions Judge, Shikarpur, was an accused in a case under section 376/109, P. P. C., which had been transferred by the District Magistrate, Larkana, to the petitioner, when the latter was A. D. M, Larkana, and in that case he had ordered process to issue against the accused, including Mr. Abdul Jabbar Bachani. The learned Sessions Judge rejected the prayer of the petitioner for the transfer of the case from Shikarpur to any other Court on the ground that the learned Additional Sessions Judge, Shikarpur, alone had the jurisdiction to try the case. It is in these circumstances, that the petitioner has approached this Court for transfer of the case to some other Court, which is competent to try the same.

2. The order by the petitioner in the case under section 376/109 directing process to issue against Mr. Bachani and others was passed about 12 years back and in view of the lapse of time, it is improbable that Mr. Abdul Jabbar Bachani would bear any bias or malice towards the petitioner. Furthermore, a Judicial Officer is expected to deal with cases objectively and not to exercise his powers for the purposes of settling any old scores with a party. I would expect that Mr. Bachani would bear his judicial mind upon the Revision application, which has been transferred to him and decide the case fairly without taking up the old case of 1965, in which he was an accused before the petitioner. However, in view of the very exceptional and rather extraordinary circumstances of the case, I consider that it would be expedient in the interest of justice and would also set at rest any doubts which the petitioner may entertain in this behalf, that the Revision Application by the petitioner and Mr. Alvi be transferred from the Court of Mr. Abdul Jabbar Bachani to the learned Sessions Judge, Sukkur, who should dispose of the same himself.

Petition allowed.

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