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Criminal Miscellaneous No. 185-T of 1981, decided on 14th December, 1981.
---- S. 526---Transfer of criminal case--Transfer sought on ground that Additional Sessions Judge seized of matter not favourably dispos ed towards defence counsel interrupting him during cross-examina tion of witnesses and using such words about him as "having misled the witnesses, etc." and counsel having become nervous lost track and trend of cross-examination and counsel thus lost confidence and not considered fit to conduct case any longer-Case withdrawn from such Court, in interest of justice.-[Transfer of criminal cases].
Mian Qurban Sadly lkram for Petitioner.
Fayyaz Ahmad for A.-G. for the State.
Date of hearing : 14th December, 1981.
This petition under section 526, Cr. P. C. seeks the transfer of a Sessions trial pending in the Court of the learned Additional Sessions Judge (II), Mianwali.
2. The grounds, inter alia, are that the learned Additional Sessions judge (II), Mianwali has not been conducting the trial impartially; he has been asking the witnesses questions which he would later on record as voluntary statement ; his conduct throughout has been biased and prejudiced towards the petitioner/accused and that a stage reached when the learned counsel conducting the case on behalf of the petitioner had to request for permission to withdraw the refrom.
3. Parawise comments were sent for from the learned Additional Sessions Judge (II), Mianwali which have been received and perused.
4. The learned counsel for the petitioner contended that it has been admitted in the parawise comments that there have been interrup tions whilst the learned counsel for the petitioner was cross-examining the witnesses ; that the tenor of the parawise comments especially para: (5) do lead to the inference that the learned Additional Sessions Judge seized of the matter is not favourably disposed towards the learned defence counsel he having used words about him of having misled the witnesses, etc. and his having become nervous and lost the .track and trend of the cross-examination and thus losing confidence and not considered fit. to conduct the case any longer". The learned counsel further contends that in the attendant circumstances of the case it is manifest that the petitioner has a genuine apprehension in his mind that he will not meet with a fair trial before the learned Additional Sessions Judge. It is also submitted that justice should not, only be done but should be shown to have been done which principle has been lost sight of by the learned Additional Sessions Judge while conducting the trial of the Sessions case. The learned counsel appearing for the State concedes that in view of the contents of para. (5) of the parawise comments, the case merits to be transferred.
5. Having given consideration to the controversy involved, I also feel that it will be in the interest of justice that this case is withdrawn from the Court of the learned Additional Sessions Judge (II), Mianwaii who is presently seized of the matter. In view of the foregoing accepting this petition it is directed that the case in question be withdrawn from the Court of the learned Additional Sessions Judge (II), Mianwali and entrusted to the learned Sessions Judge, Mianwali for adjudication in accordance with law. Parties to appear before the learned Sessions Judge. Mianwali on 21st December, 1981.
Petition allowed
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