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Criminal Miscellaneous Petition No. 770 of 1957, decided on 29th August 1957, under section 526, Criminal Procedure Code, for transfer of case under section 5 (2) of the Pre vention of Corruption Act, 1947 from the Court of Ch. Qadir Bakhsh, Special Judge, Lahore.

Not bound to answer Court questions which are meaningless‑Criminal Procedure Code (V of 1898), S. 485 ‑Evidence Act (I of 1872), S. 165.

A Judge may take action under section 485, Criminal P. C. if a witness refuses to answer such questions as are put to him, but if the questions are themselves meaningless, then the witness has no other alternative but, keeping in mind the dignity of the Court, which he is bound to maintain both morally and legally, to keep quiet and respectfully refuse to answer them. A Magistrate cannot bully a witness and force him to adopt an attitude of contempt towards him.

A prosecution witness had stated previously before the raiding Magistrate that he had repeatedly requested the Revenue Patwari accused to allot certain land to him and had also paid him Rs. 250 as illegal gratification, but the Patwari dilly‑dallied. He repeated the same story before the trial Judge with this addition only that the Patwari was not helping him, although he had very cordial relations with his father. This was the only previous grudge to which the witness had alluded at the trial and no other. In these circumstances there was no contradiction which the witness could be called upon to explain or reconcile.

Trying a particular type of cases (corruption) over a long time‑May unconsciously develop a mentality which may hinder even‑handed justice‑Necessity to transfer case‑Criminal Procedure Code (V of 1898), S. 526 Apprehension in mind of accused that Judge was not holding scales of justice even‑Pakistan Criminal Law Amendment Act (XIX of 1948) Las amended], S. 9 (2).

If a Magistrate tries certain particular type of cases and remains on that job for a fairly long time then quite unconsciously he drifts into such a state of mind that he is unable to act impartially, objectively and without any bias.

For instance having been entrusted to try corruption cases and corruption cases alone for a long time a Special Judge might have quite unconsciously developed a mentality in which it may have become quite impossible for him to dispense even handed justice or estimate the evidence cor rectly.

In this case, the special judge had gone out of his way in condemning a prosecution witness who in cross‑examination had happened to say that he had a grudge against the accused, and in asking him questions which were absolutely un necessary.

The High Court ordered transfer of the case to another Special judge, as the above circumstances created in the mind of the accused the apprehension that the judge was not holding the scales of justice evenly.

Jan Hussain for Petitioner.

Mian Mushtaq Ahmad. Assistant Advocate‑General for Respondent.

Date of hearing : 26th August 1957.

This is a transfer application of the case (State v. Bashir Ahmad), under section 5 (2) of the Prevention of Corruption Act, 1947, by the accused person, from the Court of Ch. (nadir Bakhsh, Special Judge, Lahore, to any other Court of competent jurisdiction.

The grounds on which the transfer is sought are numerous, but I am in particular impressed by one. The learned Magistrate examined Muhammad Sharif (P. W. 1) on the 19th of June 1957. his examination‑in‑chief and cross examination went on smoothly until he stated in cross‑examina tion by the defence counsel that he had a grouse against the accused, because in spite of his good relations with his father he was not helping him in getting his claim verified. This statement seems to have annoyed both the Public Prosecutor and the learned trial judge. The former at once made a request that as the witness had taken him by surprise he might be permitted to cross‑examine him. The learned judge without giving that serious thought to the submission as it merited granted the permission and the Public Prosecutor proceeded to cross‑examine him. It makes me think that the witness who upto that stage was making a perfectly straight forward statement, was made to say by the Public Prosecutor something which may well have an adverse effect upon his credibility. This will, however, be seen later on when the stage for appreciating the evidence is reached. The procedure adopted by the trial judge to which an exception has been taken by the accused, and I think very rightly, followed the statement reproduced below which Muhammad Sharif made on a question asked from him by the Public Prosecutor :‑

"I stated before the raiding Magistrate that I had previous grudge against the accused. I did state before the raiding Magistrate in my statement Exh. P. C., that I had no previous grudge or enmity with the accused."

This statement for no apparent reason provoked the Court to ask the witness the following question :‑

"You have stated before this Court that you had previous grudge against the accused for which you got him involved. In your statement at Exh. P. C., before the raiding Magis trate you stated that you had no grudge against the accused. Which of these two statements is correct ".

The learned Magistrate then wrote a note that this question was repeated ten times to the witness, but he did not answer it and so he 5ave him another five minutes to answer this question to which the witness replied that his statement before this Court was correct. The learned Court then asked a second question. "If your statement before the raiding Magistrate at Exh. P. C. as read over to you is that you had no previous grudge or enmity against the accused, will that statement be correct or wrong."

The learned Magistrate then says that the witness refused to answer although the question was repeated to him several times The witness was then taken into custody and kept in it until the following day when his statement was recorded for the second time. The witness then stated that his state ment before a the raiding Magistrate in Exh. P. C. that he had no previous grudge or enmity against the accused was correct, and that the statement he made before the trial judge that he had previous enmity against the accused was incorrect. The answer was in reality forced upon the witness, otherwise if let alone, he would have stuck to his previous statement. If the learned judge had maintained the coolness of his mind, as is expected of all good judicial officers, he would have surely realised that the witness in his answer was right and he was wrong. The witness had stated before the raiding Magistrate that he had repeatedly requested the Revenue Patwari (Bashir Ahmad) to allot certain land to him and had also paid him Rs. 250 as illegal gratification, but the Patwari dilly‑dallied. He repeated the same story before the learned B trial judge with this addition only that the Patwari was not helping him, although he had very cordial relations with his father. This was the only previous grudge to which the witness was alluding, and no other. Where was then the contradiction that the learned trial judge insisted on the witness so indignantly to explain or reconcile A Judge may take action under section 485, Criminal P. C., if a witness refuses to answer such questions as are put to him, but if the questions are themselves meaningless, then the witness has ' t no other alternative but, keeping in mind the dignity of the Court, which he is bound to maintain both morally and legally, to keep quiet and respectfully refuse to answer them. 1 Magistrate cannot bully a witness and force him to adopt an attitude of contempt towards him.

Ch. Qadir Bakhsh, it appears, has been Special judge trying corruption cases since some time now. Experience h‑3s taught us that if a Magistrate is entrusted to try certain particular type of cases and remains on that job for a fairly long time then quite unconsciously he drifts into such a state of mind that he is unable to act impartially, objectively and without any bias. The judges are after all human beings, and therefore, certain precautions have to be taken not so much to prevent an erroneous appreciation of evidence but to prevent the judge from being placed in such a situation' where erroneous appreciation of evidence may become a possibility. The precaution in my judgment lies in not restricting the Magistrate's jurisdiction to try only one type of cases. I do not impute any motive to Ch. Qadir Bakhsh, nor do I attack his honesty, but I certainly have a fear that having been entrusted to try corruption cases and corruption cases alone for such a long time he might have quite uncon sciously developed a mentality in which it may have become C quite impossible for him to dispense even handed justice or estimate the, evidence correctly. By no means should an impression be given to the general public that in trying certain cases a judge is only an instrument to convict people. In this particular case, I am definitely of the opinion that the learned trial judge has gone out of his way in condemning Muhammad Sharif and in asking him questions which were absolutely unnecessary. In these circumstances, I am not surprised if an apprehension is created in the mind of the accused that the learned Judge was not holding the scales of justice evenly. I am, consequently, constrained to accept this application and order that the case State v. Bashir Ahmad be transferred by the District Magistrate, Lahore, to some other Court of competent jurisdiction.

A.H. Case transferred,

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