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Criminal Petition for Special Leave to Appeal No. 4/R of 1979, decided on 20th February, 1979.

(Appeal against the judgment and order dated 6‑11‑78, passed by the Lahore High Court in Cr. Misc. No. 56/T of 1978).

----S. 526‑Transfer of criminal cases‑Transfer of case sought on ground of trial Judge having not recorded statements of witnesses according to what they stated‑High Court's observations that such aspect of case could be brought to notice of trial Court at conclusion of evidence and if necessary could be verified by re‑examining witnesses, held, proper finding, due to petitioner's right to bring his grievance to notice of trial Judge having been recognised‑Impugned order of High Court being neither arbitrary nor unreasonable, order in question, held further, calls for no interference.

Fazal Elahi Siddiqui, Advocate High Court (with special permission of the Court) for Petitioner.

Nemo for Respondents.

Date of hearing : 20th February, 1979.

.‑This leave petition which is directed against the order of a learned Single Judge of the Lahore High Court, dated 6‑11‑78 arises in the following circumstances. ' On 11‑10‑75 the petitioner herein lodged at the Tamman Police Station, District Attock, F. I. R. No. 49 against respondents Nos. 2 and 3 accusing them for the murder of his brother Nisar, a young boy of about 18 years of age. The case of the prosecution in the trial Court is that the deceased Nisar had left his house on 9‑6‑75 in the company of Muzaffar Khan respondent, with a view to purchasing Tara Mira grain ; that ever since then, however, Nisar remained incommunicado with his family ; that on 10‑10‑75 P. W. Ghulam Muhammad discovered a human skeleton lying in a Khud in the outskirts of the village, of which he informed the Lambardar of the village accordingly ; that on receipt of the said information the Lambardar along with the petitioner and his paternal aunt proceeded to the spot and on arrival there, saw the said human skeleton ; that thereafter they proceeded to the police station and conveyed the said information to the police who went to the spot and took the said human skeleton into possession ; after having got the said human skeleton medically examined the same was found to be of deceased Nisar with the result that the petitioner lodged F. I. R. of the occurrence at the Police Station, Tamman on 11‑10‑75 against the respondents.

During the course of the investigation of the case Muzaffar Khan respon dent is said to have produced a fountain pen belonging to the deceased on which his name was engraved, as also that he led to the recovery of the Chappa of the deceased from a place next to the Khud where the skeleton of Nisar deceased was discovered. So far as respondent Ghulam Rabani is concerned, he is said to have produced before the Investigating Officer from his own house, the watch of the deceased, a ring on which the name of the deceased was engraved as well as the container which the deceased had carried with him on 9‑6‑75 when he went out to purchase Tara Mira grain. Both the accused are also alleged to have made extra‑judicial confession. Upon these facts, both were arrested and after the completion of the investigation of the case, challan before the Court of the Additional Sessions Judge, Attock was sub mitted for their trial under section 302 for the murder of Nisar. During the trial, when two P. Ws. namely Mir Baz and Mst. Nasim Kausar were examined on 27‑3‑78 and 30‑3‑78 respectively, the petitioner herein (who is the real brother of the deceased) was seized by the apprehension that their evidence was not faithfully recorded. Therefore, he filed before the learned trial Judge an application praying therein that he should transfer the case to some other Court and in the meantime stop the proceedings.. The learned counsel says that although the learned Judge accepted the prayer for stopping the proceedings, he directed the petitioner to approach the High Court for the transfer of the case from his Court to any other Court of competent jurisdic tion. In pursuance of the said order the petitioner filed in the High Court a transfer application but the same was dismissed by a learned single Judge vide his order dated 6‑11‑78. It is in this background that the petitioner has come up to this Court praying leave to appeal against the impugned order of the High Court.

Now the precise grievance of the petitioner in the High Court was that in answer to a question put to him in cross‑examination to the effect if he was a bad character of the local police station, Mir Baz denied this suggestion but in the record of the proceedings what the learned trial Judge got recorded was that he was a bad character. In dealing with this grievance of the petitioner the learned Judge in the High Court observed, and here I quote him:

"This aspect of the case can also be brought to the notice of the trim Court at the conclusion of the evidence and may be got verified from the Investigating Officer, if necessary."

In our view, this seems to be a fair finding to which no exception car be taken in these proceedings. In point of fact, the finding in question recorded by the learned Judge would seem to be the only proper finding because the trial is still continuing, and the right of the petitioner to bring his grievance to the notice of the learned trial Judge at the proper time has beer recognized.

In respect of the evidence of Mst. Nasim Kausar who is the real sister 'of the deceased, the grievance in the High Court was that white deposing to the contents of the diary maintained by her late father in the examination‑in chief she maintained that against the entry of 9‑6‑75 her deceased brother Nisar was shown to have gone out of the house in the company of Muzaffar Khan respondent for purchasing Tara Mira grain. However, in cross examination in that behalf, her attention was invited to the two parallel lines' appearing along with the said date, and questioned whether they denoted the date of 11‑6‑75 to which she replied in the negative saying that they were meant to denote Aizann . On the records of the proceedings, however, the‑ learned trial Judge is said to have got recorded her answer as if she had admitted the said two lines to mean 11‑6‑75 and of which the petitioner was aggrieved. Dealing with the said grievance, however, the learned Judge of the High Court observed, and again I quote him.

"In my opinion it may not be proper at this stage to accept any interpretation because the evidence in the case is still in progress. How, ever, if at the conclusion of the evidence, the trial Court feels that in the interest of justice a clarification was necessary, it may then re‑examine the witness."

This finding of the learned Judge also seems to be proper. After the conclusion of the recording of evidence in the case it would be open petitioner to move the learned trial Judge in that behalf by making a propel application before him, and we have no doubt that the same would be considered on its merit.

It would thus be seen that the impugned order passed by the learned Judge in the High Court cannot be said to be arbitrary or unreasonable. In these circumstances the Order in question evidently calls for no interference by this Court. This petition, therefore, fails and is dismissed.

Petition dismissed.

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