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Criminal Miscellaneous No. 22/T of 1981, decided on 17th October, 1981.

---S. 526--Transfer of Sessions case--Dispute over question of possession of land--Question of possession having already been decided by Sessions Judge as District Judge in two civil appeals--Expression of such opinion raised apprehension in mind of complainant--Case fixed for trial out of turn--Explanation given by Sessions Judge for fixing trial out of turn found not satisfactory and no justification found for giving preference to relevant case over others--Expression of view by Sessions Judge on question of possession of disputed land which was crucial point for determination at trial, could give rise to reasonable apprehension in mind of complainant that Judge would adhere to his earlier view- Petitioner, held, had reasonable and bona fide apprehension that trial in that Court would not take place in fair and impartial manner in circumstances--Case transferred to another Sessions Judge.

Sh. Khizar Hayat for Petitioner.

Tassaduq Hussain Jilani, Asstt. A.-G. for the State.

Dr. Khalid Ranjha for the Complainant.

Muhammad Shafi complainant in case F.I.R. No. 213, dated 21-8-1980 registered under section 302/307/148/149, P.P.C. at Police Station, Burewala filed the present petition under section 526, Cr.P.C. for the transfer of the case 'State v. Muhammad Iqbal and others' from the Court of the Sessions Judge, Vehari to the Court of Sessions Judge of some adjoining district on the ground that the learned Sessions Judge, Vehari, had already expressed his view with regard to the possession of land which was the bone of contentions between the complainant party and the accused while deciding civil appeals filed by the accused against the order of the learned Civil Judge dismissing their application under Order XXXIX, Rules 1 and 2, C.P.C. that the learned Sessions Judge had fixed the trial of the case sought to be transferred out of turn and that the accused were influential persons in the district and as such would use all means to obstruct the course of justice if the trial was held at Vehari.

2. Report was called from the learned Sessions Judge, Vehari, with regard to the allegations made by the petitioner. The learned Sessions Judge admitted that he had decided two civil appeals in which the question of possession of the parties over the disputed land was involved. He, however, stated that he had given a tentative opinion as to the factum of possession of the land in dispute and that it was not likely to affect the trial in the criminal case in any manner. He explained that the trial of the case was fixed out of turn because there were as many as eight accused in the present case who were confined in the jail for more than one year, whereas in the cases registered prior to the petitioner's case most of the accused had been released on bail.

3. Learned Assistant Advocate-General who has appeared on behalf of the State has supported the petitioner's prayer for transfer of the case while the accused have opposed it and it has been contended on their behalf that the tentative opinion expressed by the learned Sessions Judge, Vehari, while deciding the civil appeals which had arisen out of the suits instituted by the parties would not affect the decision in the criminal case as the question of possession of the disputed land would be determined by the trial Judge on the basis of evidence which would be produced before him by the parties. According to the learned counsel for the accused the judgment in the civil appeals would be wholly irrelevant in the criminal case and as such there should be no apprehension in the petitioner's mind that the learned Sessions Judge would be influenced in any manner by the tentative opinion regarding the possession of the disputed land formed by him while disposing of the parties' appeals. It has been further submitted by the learned counsel for the accused that no adverse inference should be drawn against the learned Sessions Judge, Vehari, simply because he had fixed the trial of the case of the accused at an early date particularly when plausible explanation has been given by him for giving preference to this case over some other cases. Lastly, it has been contended on behalf of the accused that the transfer of the case at this stage when a date has been fixed for its trial would unnecessarily cause delay in the trial which would undoubtedly lead to hardship to the accused who were confined in the jail for more than one year.

4. I have considered the arguments of the parties' counsel. It is true that the learned Sessions Judge, Vehari, has not incurred any legal disability to try the accused in the present case, merely because he has decided two civil appeals in which the question of possession of the land which led to the fight between the complainant party and the accused was involved. But the expression of view by the learned Sessions Judge, Vehari, on the question of possession of the disputed land which would be a crucial point for determination at the trial can give rise to a reasonable apprehension in the mind of the complainant that the learned Sessions Judge would adhere to his earlier view, which, though tentative, had been formed by him after considering all the relevant facts, even while deciding the criminal case. The fact that the judgments in the civil appeals would be irrelevant in the criminal case, or that the learned Sessions Judge would not be legally bound to follow the view expressed by him in the aforementioned judgments may not allay the above apprehension of the petitioner. Complainant's apprehension that the trial was not likely to be held in a fair and impartial manner is not merely based on the expression of view over the question of possession of the disputed land by the Sessions Judge but also due to the fact that the case has been fixed for trial out of turn. The explanation given by the learned Sessions Judge for fixing the trial out of its turn does not appear to be satisfactory because there was no justification for giving preference to the present case over another case listed at serial No. 14 of the list appended by the learned Sessions Judge with his report in which all the three accused are confined in the jail and the case was registered as far back as 4-7-1980. The mere fact that the number of accused why, were confined in jail in the present case was more than the number of accused in any other case should not have weighed the learned Sessions Judge for accelerating the trial of the accused in the present case. The petitioner has, therefore, a bona fide and reasonable apprehension that the trial in the Court of the learned Sessions Judge, Vehari would not take place in a fair and impartial manner.

5. For the foregoing reasons this petition for transfer of the case State v. Muhammad Iqbal and others is allowed. The case shall be sent to the Sessions Judge, Sahiwal for trial, as it is stated by the parties' counsel that the learned Additional Sessions Judge, Vehari has already declined to try this case. There is also a cross-case registered against the complainant party at the instance of the accused which is to be tried alongwith the aforementioned case. The record of that case should also be sent to the Court of Sessions Judge, Sahiwal. Both these case should be tried and disposed of by the learned Sessions Judge, Sahiwal before this year is out.

S.A./5366/L Petition accepted.

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