ZAMIN DAD SHAH vs RAZIK SHAH and 2 others s
This matter concerns a transfer application filed by the complainant, Zamin Dad Shah, seeking the transfer of a murder trial from the court of the 1st Additional Sessions Judge, Karachi West. The applicant alleged that the trial court was acting with undue haste and bias, citing the issuance of bailable warrants for witnesses who had not been served notice and the court's failure to correct a diary entry regarding the complainant's presence on a specific date. The core legal question was whether the applicant's apprehension of receiving an unfair trial was reasonable, thereby justifying the transfer of the case. The High Court held that, given the procedural irregularities—specifically the issuance of warrants despite lack of service and the unresolved application regarding the diary entry—a reasonable apprehension of bias existed in the mind of the applicant. Consequently, the court allowed the transfer of the case to the Sessions Judge, Karachi West, for disposal within three months, while directing the complainant to ensure the production of all prosecution witnesses before the new court.
- Does the issuance of bailable warrants for witnesses without prior service of notice constitute grounds for a reasonable apprehension of bias?
- Can a case be transferred from a trial court if the complainant establishes a reasonable apprehension that they will not receive justice?
- Is a trial court required to decide on an application for the correction of a diary entry before proceeding with the trial?
ORDER
1. ' SARMAD JALAL OSMANY, J.---Mr. Kazmi has submitted that the learned trial Court viz. Ist Additional Sessions Judge, Karachi West seems to be in a rush for concluding the matter before it arising out of Crime No,22 of 2005, P.S. Shershah. This is a murder case is which Applicant Zamin Dad Shah's father was allegedly murdered by Respondents Nos. 1 and 2. According to learned counsel there is apprehension in the mind of the applicant .That due to such keenness of the learned trial Court to conclude the matter that perhaps it is inclined in favor of the accused particularly when with notice/summon to the complainant and P.Ws. For their attendance, bailable warrants were issued.
2. Similarly, according to learned counsel the Applicant/ Complainant was present on one date viz. 3- 11-2006 before the learned Trial Court when he was marked absent for which he had moved the necessary application for correction of the diary which has not yet been decided.
3. ' He therefore, submits that there is reasonable apprehension in the mind of Applicant that he would not get justice at the hands of learned trial Court and hence he prays that the matter may be transferred to any other Court of competent jurisdiction. In support of his submissions, learned counsel placed reliance on the case of Abdul Sattar v. The State (1990 M LD 1102).
4. ' Mr. Attaullah Khan, learned counsel appearing for. Respondents Nos. 1 and 2/Accused has stated that in principle he has no objection to the transfer application but at the same time he prays that while transferring the case, it may also be observed that the trial be concluded within a short time.
5. According to learned counsel after bail had been refused to the accused, now the applicant/complainant is indulging in delaying tactics in order to ensure their continued detention of the accused behind bars.
6. ' Mr. Arshad. Lodhi, learned A.A.-G. Has not opposed the contention of either learned counsel.
7. ' I have heard the learned counsel as well as learned A.A.-G. And have gone through the diary sheet filed in the matter of the learned trial Court as well as comments of the learned Judge. Indeed bailable warrants were issued for the attendance of the accused when admittedly notices were not served upon them and according to learned trial Judgethis was done due to a bona fide mistake of the concerned Clerk. Be that as it may, so also it appears that perhaps Applicant/Complainant was present on 3-11-2006 but marked absent for which he has moved necessary application for correction of the diary sheet but so far the same has not been decided.
8. ' In the circumstances a reasonable apprehension in the mind of Applicant that he would not obtain justice at the hands of learned trial Court cannot be ruled out. Consequently, I would allow this application. Sessions Case No, 660 of 2005 arising out of F.I.R. No, 122 of 2005, P.S. Shershah, now pending with the learned 1st Additional Sessions Judge Karachi (West) is transferred to the file of learned Sessions Karachi (West), who may either hear it himself or send to any other learned Additional Sessions Judge. It is also observed that upon receipt of this order, the matter shall be disposed of within three months. It is directed that the matter shall be fixed before the learned Transferee Court on 19-2-2007, when the Applicant/Complainant is bound down to produce all the P. Ws. Before such Court. Application stands disposed off.