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Criminal Miscellaneous No. 58‑T of 1986, decided on 29th April, 1986.
‑‑‑S. 526‑‑Transfer of criminal case‑‑Maxim: "Justice should not only be done but should manifestly and undoubtedly be seen to be done", application of‑‑Presiding Officer just an Assistant Commissioner whereas accused before him, being Police Officers, holding status of Senior Superintendent of Police, Superintendent of Police, etc. Presiding Officer allowing unnecessary adjournments in case thereby giving genuine apprehension in mind of complainant that he would not get fair trial at hands of such Presiding Officer‑‑Maxim "justice should not only be done but should manifestly and undoubtedly be seen to be done", held, attracted to facts of case‑‑Complaint entrusted to Sessions Judge trial by him personally.‑‑[Maxim].
King v. Sussex Justices (1924) I KB 256 ref.
Ch. Abdul Rashid for Petitioner.
Respondents Nos. 1 to 7 in person.
Najam‑uz‑Zaman, A.A.‑G. for the State.
Liaquat Ali Butt, son of Muhammad Sarwar Butt, Kashmiri, resident of 22‑Alamgir Road, Misri Shah, Lahore, filed a complaint against Ahmad Naseem, S.S.P., Lahore, Tariq Saleem Khokhar Dogar, S.P. Cantt, Masood Khan Bangish D.S.P. Cantt, Saleem Ghuman, Inspector/ S.H.O., P.S. North Cantt, Ahmad Khan, Inspector/S. H.O, P.S. South Cantt, Muhammad Ashraf, A.S.I., P.S. South Cantt, and Rizwan A.S.I., Police Lines, Lahore. The complaint was filed under sections 504, 506 and 12 other sections of the P.P.C. , including sections .365, 452 and 509, P.P.C., read with sections 109 and 149, P.P.C.
It is not necessary to discuss the contents of the complaint for the disposal of this transfer application.
The petitioner seeks transfer of his complaint, pending in the Court of Assistant Commissioner, City, Lahore to the Court of either the Sessions Judge or one of the Additional Sessions Judges at Lahore.
The petitioner's case is that when he filed the complaint his statements was not‑ recorded and the case was adjourned on 23-1‑1986. He filed a revision in the Court of Sessions Judge, Lahore, against the order dated 21‑1‑1986. The revision was entrusted to an additional Sessions Judge, who set aside the order of the Assistant Commissioner and directed him to proceed in accordance with law.
When the petitioner appeared before the Assistant commissioner, he again adjourned the complaint to 1‑3‑1986 for recording the statement of the complainant. The complainant was adjourned two subsequent dates as well, without recording the statement of the petitioner complainant. According to the learned counsel, now the statement of the petitioner has been recorded, but no other witnesses has been examined so far.
The sole ground for transfer is that the petitioner has genuine apprehension that he would not get fair trial at the hands of the Assistant Commissioner, because of the official status of the accused one of whom is an S.S.P., Lahore, another S.P. Cantt, Lahore and the remaining are also Police Officers.
This petition came up for hearing before Mr. Justice Abdul Waheed, who issued notice and also called for comments and report from the Assistant Commissioner. The comments have been submitted. I have heard the learned counsel for the petitioner at some length. His sole contention was the one referred to above.
All the respondents are present, in person. The A.‑A.G. has appeared on behalf of the State. He opposed the transfer.
I asked the respondents if any one of them would like to address me. The S.S.P. and one of the Inspectors made submissions. The former told me the background of the complaint, which is not material for deciding this application. With regard to the transfer application, he submitted that he had no objection if the case was transferred to any other competent Court preferably that of the Sessions Judge, Lahore. The other Officer opposed the transfer and wanted the complaint to be decided by the assistant Commissioner.
One of the essential ingredients for transfer of a criminal is the apprehension in the mind of the litigant as to whether he would get justice or not. The apprehension must, however, be genuine, having some basis. It has to be considered alongwith other relevant facts and. factors.
In this case, the Presiding Officer is just an Assistant Commissioner. He belongs to the Executive. The accused before him are the S.S.P., S.P. and other Police Officers. However, strong the Presiding Officer, may be, but he is likely to feel uncomfortable by the presence of the accused before him, especially if the Police officers decide to appear in the uniform.
The question to be determined is whether the Presiding Officer will be able to bear the burden of the accused, or is likely tee succumb to the pressure of their official status. This question is to be answered keeping in view the centuries old maxim, "justice should not only be done, but should manifestly and undoubtedly be seen to be done" Lord Hewart, Chief Justice of the King's Bench Division, in the King Sussex Justices (1924) 1 K.B. 256 observed that it was not merely of some importance but was of fundamental importance that justice should n only be done, but should manifestly and undoubtedly be seen to, be one.
In view of this, I think the request of the petitioner has to re allowed, especially when there is another factor which is unnecessary adjournment is of the complainant.
I therefore, accept this petition and transfer the case from the Court of Assistant Commissioner City, Lahore to that of the Sessions Judge, Lahore who is hereby directed to try the same himself and decide it in accordance with law.
S.G. D. Case transferred.
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