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Criminal Miscellaneous No.120 of 1987, decided on 29th July, 1987.

---S.526--Transfer of case--Criminal case normally to be tried within the locality and natural setting to' which it belongs, unless very special case for shifting of venue of trial made out so that justice is also seen to be done to all concerned--Transfer of criminal case pressed on general ground of apprehension of hostile local atmosphere against complainant party but impartiality of Presiding Officer not in question--Petitioner's grievance already redressed by Provincial Government by ordering trial within jail premises--No case, held, was made out warranting transfer, in circumstances.

P L D .1973, S C 327; 1969 P Cr.L J 1058 and 1973 L N 172 ref.

Farooq Amjad Mir for Petitioner.

S. M. Zubair, Asstt.A.-G. for the State.

Date of hearing: 29th July, 1987.

This transfer application has emanated out of a case which was registered vide F I ft 275/85, dated 29-11-1985 under Sections 302/148/149, P.P.C. at Police Station Sangla Hill, District Sheikhupura, at the dictation of one Mumtaz Javed Chatha, Advocate for the murder of his brother Muslim Pervez Chatha Advocate, against 8 persons including the present four petitioners. Challan in this case was submit ted before the trial Court on 21-4-1986 and is presently pending in the Court of Syed Abdul Aziz Shah, learned Additional Sessions Judge, Sheikhupura. It is stated that two of the accused persons have been discharged by the police, and the other two have absconded.

2. This transfer application is moved on the ground that the deceased had been a member of the local Bar and so is the complainant, therefore, the local Bar has a hostile disposition in this regard and the petitioners apprehend that they will not get a fair and impartial trial. On a specific question from the Bench, whether the petitioners have any apprehension of bias towards the learned Additional Sessions Judge presently seized of the case, the learned counsel by making a reference to grounds (vii) and (viii) of the amended petition, submitted that in a bail application moved by the petitioners, the case was once adjourned by the said learned Additional Sessions Judge, on the ground that learned counsel for the complainant was pre-occupied professionally at Faisalabad; though another learned counsel was present. It was again specifically asked from the learned counsel, is there any other fact which could show bias disposition of the learned Additional Sessions Judge, the answer was in the negative. It was submitted that apprehension is against local atmosphere at the behest of the local Bar. Learned counsel for the petitioners to butress his submissions has referred to the case reported in P L ,D 1973 S C 327, where the case was transferred from the Court of a Magistrate: to the original jurisdiction of the Sind High Court; because the matter was between the then sitting Prime Minister and his political rival Air Marshal Asghar Khan. He has referred to another case 196ft P Cr.L J 1058, where the case was, transferred from the Session Court of Mianwali to the Lahore High Court, concerning the murder trial of former Governor of West Pakistan, the late Malik Amir Muhammad Khan, and also made a reference to 1973 L N 172.

3. On the other hand, the learned Assistant Advocate-General has submitted that while this matter was previously pending before another learned Bench, on the basis of what transpired during the course of the proceedings, and from the contents of the petition, he apprised the Provincial Government of the matter and consequently the Home Department vide Notification No.Jud1.II/23(1)/82 (Provl.) dated 7-7-1987, in the interest of justice, in exercise of the power envisaged in section 9(2) of the Cr.P.C. has ordered that the venue of the trial be shifted from the Sessions Court, to the District Jail. Sheikhupura, and has submitted that this resolves the petitioner grievance so far as non-congenial and hostile atmosphere is concerned He has also submitted that a case could be transferred on the basis of reasonable apprehension as to the lack of confidence, inter alia, in the Presiding Officer and the expression reasonable has the inbuilt characteristics of objectivity whereas a perusal of the contents of the petition as well as that of the amended petition does not manifest even a single word tending to suggest partiality of the learned trial Judge except that he had granted one adjournment in the bail application. He has further submitted that convenience of the partie" would also be a relevant factor in this regard since there are at: many as 14 witnesses, and all of them belong to Sheikhupura. Therefore, transfer of the case is not justifiable.

4. I have considered the arguments advanced by the learned counsel for the parties, and the judgments referred to by the learned counsel for the petitioners. The cases cited have their very peculiar features and have no parallel with the instant case. Independent of the factual distinctions, the rubric prescribed by law in such like matters is reasonable apprehension that petitioner will not get a fair or imparial trial; which is lacking in the present case. I am of the opinion that for vindication and re-affirmation of the public faith and belief in the administration of justice both on the basis of anglo-Saxon law as well as on the basis of Islamic Jurisprudence, in generality of cases, the interests of justice would be better served if the case is j tried within the locality and the natural setting to which it belongs, unless, a very special case is made out so that the justice should also be seen to be done to all concerned. The Provincial Government, making allowance for the susceptibility of the petitioners has redressed a their alleged grievance of uncomfortable atmosphere, by taking out sting thereof, by changing the venue, whereas the impartiality of the learned Presiding Officer is not in question. Therefore, no case is made out warranting transfer and the petition is accordingly dismissed.

S.G.D./M-387/L Transfer of case declined.

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