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Criminal Petition for Leave to Appeal No. 7 of 198.0, decided on 27th January, 1981.
(Appeal against the Order of the High Court dated 31st August, 1980).
-- S. 526-Transfer of criminal case-Mere assertion of bias of a member of Court-Can hardly provide ground for transfer of case-Transfer of case sought on ground that Qazi belonged to same school of thought to which a relative of accused belongs --Hardly a sufficient ground to disqualify Qazi in hearing a cause or matter-Assertion even if correct, held, does not provide a ground for transfer of case unless supported by a bias in proceed ings by Qazi-Transfer of case declined, in circumstances.-[Transfer criminal case].
M. S. Farooqi, Advocate for Petitioner.
Transfer of a murder case, pending in the District Criminal Court, Poonch, was sought by the petitioner (complainant) in the High Court on the ground that the District Qazi belongs to the same school of thought to which one Bir Khan, who is a relative of the accused, belongs.
2. The High Court, vide its order dated 31st August, 1980 found the ground untenable and refused to transfer the case from the District Criminal Court, Poonch.
3. The learned Advocate-General in the High Court frankly conceded that the ground on which the transfer is sought is not a valid ground justifying transfer.
4. The allegation stated in. the transfer application is disowned by the members of the trial Court even as the report of the High Court shows. The file also failed to indicate any partiality on the part of the Qazi or the Sessions Judge to show that any one of them was being influenced by Moulvi Bir Khan, a relative of the accused. It appears that Bir Khan does not belong to that school of thought to which Moulvi Maqbool-ur-Rehman District Qazi, belongs. My view is that the complainant wants to prolong the case without any plausible reason.
5. The Qazi, as stated earlier, does not own the case of the petitioner. An official is expected to perform his duty honestly and faithfully by virtue of his office.
6. It is essential for the transfer of the case that real likelihood of bias of a member of the Court must be established. The mere assertion can hardly provide ground for transfer of the case. Therefore, mere assertion of the petitioner that the Qazi belongs to the same school of thought to which one Bir Khan, who is relative of the accused, belongs is hardly sufficient to disqualify the Qazi in hearing a cause or matter. Even if the assertion of the petitioner that the Qazi belongs to the same school of thought to which Bir Khan belongs is admitted to be correct ; this alone does not provide a ground for transfer unless this fact is not supported by a bias in the proceedings by the Qazi.
No good case is made out for the transfer of this petition for leave to appeal which is hereby dismissed. The stay order dated 7th January, 1981 automatically comes to an end.
Petition dismissed.
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