Syed DILBER HUSSAIN SHAH vs THE STATE and 5 others
This criminal revision petition was filed under sections 439 and 435 read with section 561-A of the Code of Criminal Procedure 1898 against an order of the Sessions Judge dismissing the petitioner's application for the transfer of a criminal complaint. The core legal question concerned whether sufficient grounds existed for transferring the criminal complaint from the court of the Judicial Magistrate at Paharpur due to the petitioner's apprehension of bias and threat to life, coupled with the Presiding Officer's statement having no objection to the transfer. The Peshawar High Court held that transfer of a case is justified when there is a reasonable apprehension in the mind of a party that the court cannot act impartially, and given the circumstances and lack of opposition from the magistrate, the interest of justice warranted the transfer. The court laid down the principle that the test for transfer is whether a reasonable man would justifiably apprehend bias, and courts must ensure that parties are not forced to undergo trial before a judge they reasonably regard as prejudiced.
- When is the transfer of a case from a court of competent jurisdiction justified on the ground of bias?
- What is the test for determining the reasonableness of an applicant's apprehension regarding a judge's impartiality?
- Does the lack of objection by the presiding judge to the transfer of a case weigh in favour of granting a transfer application?
- Section 439, Code of Criminal Procedure 1898
- Section 435, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 145, Code of Criminal Procedure 1898
' MUHAMMAD ALAM KHAN, J.---Syed Dilber Hussain Shah, petitioner herein, through this criminal revision petition filed under sections 439/435, Cr.P.C. Read with section 561-A, thereof, against the judgment/order dated 25-1-2008 passed by the learned Sessions Judge Dera Ismail Khan, whereby his application for transfer of Criminal Complaint No,2/4 of 2003 pending disposal in the Court of Civil Judge/ Judicial Magistrate Dera Ismail Khan at Paharpur to some Court of competent jurisdiction was dismissed.
2. The contentions of the petitioner made in this petition are that he being an old man of seventy years of age with ailing physique residing in Dera Ismail Khan City, and respondents Nos. 2 to 6 settled in Paharpur are dangerous and influential criminals, there is imminent danger to his life to attend the Court of Civil Judge; Judicial Magistrate at Paharpur in connection with his criminal complaint which is pending disposal; there that the issuance of non-bailable warrant by order dated 27-2-2007 of the Judicial Magistrate Paharpur against the petitioner during the course of proceedings under section 145. Cr.P.C. And his refusal to issue attachment order thereunder despite the availability of immediate breach of peace were stated to be the grounds due to which the petitioner had lost his confidence over the said Presiding Officer and, therefore, transfer of his complaint was required to have been ordered by the learned Sessions Judge and thus his impugned order, dated 25-1-2008 is liable to be set at naught.
3. I have heard learned counsel for the parties and perused the record.
4. At the time of preliminary hearing, comments of the learned Judicial Magistrate Paharpur were called who while denying the allegations made in the petition has stated that he has no objection over the transfer of the complaint in question from his Court to any other competent Court.
5. The transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter. It is of paramount importance that parties arraigned before Courts should have confidence in their impartiality. It is one of the important duties of this Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him. What is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer and look at the matter from the point of view having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regarded as unfavorable by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as a reasonable man might justifiably be expected to have. Reliance in this respect is placed on the case laws reported as Muhammad Nawaz v. Ghulam Qadir and 3 others PLD 1973 Supreme Court 327, Muhammad Tahir and 3 others v. Ch. Nazir Ahmad 1997 M LD 71 and Abdul Wahab and others v. Ghulam Muhammad and others PLD 2005 Peshawar 105.
6. For what has been discussed above, when the petitioner has alleged bias against the learned Judicial Magistrate Paharpur, it B would be in the interest of justice to transfer the said complaint case from his Court to some other Court of competent jurisdiction.
7. Resultantly, this petition is allowed, the impugned order dated 25-1-2008 of the learned Sessions Judge Dera Ismail Khan is set aside and the Criminal Complainant No,2/4 of 2003 filed by the petitioner against respondents Nos.2 to 6 and pending adjudication in the Court of learned Judicial Magistrate Paharpur is withdrawn from his diary and sent to the learned Senior Civil Judge Dera Ismail Khan either to decide the same himself or to entrust it to any other competent Court at Dera Ismail Khan for decision in accordance with law.