JAN MUHAMMAD Versus THE STATE Ghulam Kadir Jatoi , -

ORDER

1. M.A. 1437/87 for urgency is granted.

2. The transfer is sought on two grounds. First it is submitted that by order dated 7‑9‑1987, the trial Court has dismissed an application for adjournment and the bail of co‑accused has been cancelled. Secondly it is averred in paragraph 7 of the grounds as follows:‑

2. "7. That the further instructions of the petitioner are that while they were being in custody in the Court premises where the complainant and their headman are seeing while going in the chamber of the learned trial Judge."

3. As regards the first ground, 1 had asked the learned counsel as to who had moved the adjournment application on 7‑9‑1987 and the reply was that the learned counsel did not know who had filed that application. It was then asked from learned counsel as to what were the reasons mentioned in the adjournment application and what was the reason for the rejection of the adjournment application, the learned counsel expressed his ignorance about them stating that he is not appearing in the trial Court. It was further clarified that the bail of the present applicant has not been cancelled who is in custody but the bail granted to the two co‑accused has been cancelled. In these circumstances the contention that there is reasonable apprehension in the mind of the present applicant that he will not get justice from the trial Court, has no merit. Neither it is informed as to who had moved the application i.e. on whose behalf adjournment application had been moved nor what were the grounds in the adjournment application. It is also not known as to what were the reasons for the dismissal of the application and then the bail granted to the two co‑accused has been cancelled. The applicant's bail has not been cancelled. Even otherwise, the mere cancellation of the bail of the co‑accused, in the circumstances of this case, does not make out a case for transfer.

4. The other ground has been reproduced hereinabove. It is a vague statement. On such vague and general statement transfer of case cannot be ordered.

5. Learned counsel had also relied on a judgment of the Supreme Court of Pakistan in the case of Muhammad Nawaz v. Ghulam Kadir PLD 1973 SC 321 The relevant observations of late Chief Justice Hamoodur Rahman in that judgment are as follows:‑

6. "The transfer of a criminal 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 a High 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 his 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 unfavourable 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."

7. As observed earlier, no ground has been made out for transfer. On the basis of the material placed before this Court and the general allegation made in the memo of the transfer application, it cannot be observed that on the aforesaid material and the facts stated in the memo of the transfer application, a reasonable person would have the apprehension that he will not get justice from that Court.

8. Criminal Transfer Application No.34 of 1987 is dismissed in limine.

9. M.A. 1438 of 1987 has become infructuous.

10. S.A./J‑29/K Order accordingly.