mere apprehension of bias is insufficient for transferring a case,

Transfer Application

" underscores the importance of fair trial and due process in the Pakistani legal system. It highlights that mere apprehension of bias is insufficient for transferring a case, emphasizing the need for evidence of actual bias or prejudice.

Title: Understanding Judicial Discretion and Fair Trial: A Case Analysis

In the Lahore High Court, Bahawalpur Bench, the case of Mehmood versus The State presented a crucial examination of judicial discretion, fair trial, and the grounds for transferring a criminal case. The petitioner sought the transfer of a criminal case from the Court of Mr. Muhammad Asif Gill, a learned Magistrate, citing apprehension of bias and unfair treatment. Let's delve into the judgment to understand the intricacies of judicial decision-making and the principles governing such matters.

The petitioner's primary argument rested on the alleged bias of the learned Magistrate due to shared caste affiliation with the counsel for the complainant. Additionally, the petitioner expressed concerns over the expeditious nature of the trial, citing it as evidence of prejudicial conduct. However, the court meticulously examined these assertions in light of established legal principles.

The judgment underscored the foundational principle that mere apprehension of bias is not sufficient grounds for the transfer of a case. Instead, the court emphasized the need for concrete evidence or circumstances that reasonably substantiate the apprehension. Drawing from legal precedents and principles of natural justice, the judgment highlighted the distinction between reasonable apprehension and baseless suspicion.

Furthermore, the judgment elucidated the role of the judiciary in ensuring fair trial and impartiality. It emphasized that judges are expected to adjudicate cases based on evidential records and legal merit, rather than personal affiliations or biases. The court's duty to administer justice fairly and impartially was reiterated, emphasizing the importance of maintaining public trust in the judiciary.

Moreover, the judgment delved into the legal framework governing judicial disqualification and recusal, citing relevant statutes and case law. It elucidated the circumstances under which a judge or magistrate may be disqualified from hearing a case, emphasizing the need for clear evidence of personal interest or bias.

Ultimately, the court concluded that the petitioner's apprehensions were not substantiated by sufficient evidence or circumstances. The expeditious nature of the trial, in and of itself, did not constitute evidence of bias or unfair treatment. Therefore, the petition for transfer was dismissed, reaffirming the court's commitment to upholding the principles of fair trial and judicial impartiality.

In conclusion, the judgment in the case of Mehmood versus The State provides valuable insights into the complexities of judicial decision-making, fair trial, and the grounds for transferring a case. It underscores the importance of evidence-based arguments, adherence to legal principles, and the judiciary's paramount duty to administer justice impartially.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

(JUDICIAL DEPARTMENT)

Case No.

Crl. Misc. No. 10-T 2024

Mehmood

Versus

The State

, etc.

Sr. No. of

order/

Proceedings

Date of

order/

Proceedings

Order with signatures of Judge, and that of parties or counsel,

where necessary.

29.04.2024 Mr. Shahrukh Zaman Baloch, Advocate for the petitioner.

Mr. Zafar Iqbal Soomro, Deputy District Public

Prosecutor on Court’s Call.

Through this petition filed under section 526 of Cr.P.C.,

petitioner seeks transfer of trial of a criminal case titled “The State

versus Mehmood, etc.” in FIR No. 33 dated 30.01.2023, registered

under Sections 324/336/109-PPC, at Police Station Saddar Chishtian,

District Bahawalnagar, from the Court of Mr. Muhammad Asif Gill,

learned Magistrate Section-30 Chishtian, to any other Court of

competent jurisdiction, at District Headquarter Bahawalnagar.

It was argued by learned counsel for the petitioner that the

learned Judicial Officer being connived with the complainant has

geared up the process of recording of evidence without fulfilling the

requirement of fair trial and due process which is reflected from the

fact that even in the days of strike, he has recorded the statement of

two witnesses and is in a hurry to convict the petitioner. Further stated

that the Judicial Officer and the learned counsel for the complainant

belong to the same caste and the petitioner being accused of the case

does not expect fair trial due to biasness of the learned Judge.

Heard. Record perused.

The apprehension of the petitioner about not expecting fair

trial on the face of it is not well founded because being caste fellow

or from the same brotherhood by a counsel does not mean that the

Judicial Officer would lean in favour of the complainant side as

otherwise case is decided on the basis of evidential record and

material produced by the parties, whereas in order to avert delayed

justice expeditious trial is the requirement of law. It is furth

Crl. Misc. 10-T of 2024

observed that petitioner has also filed another application bearing

No.11-T of 2024 for transfer of case FIR No.325 dated 17.07.2022

registered under sections 324/337F(v)/34 PPC at Police Station

Saddar Chishtian, District Bahawalnagar lodged by a separate

complainant wherein grounds for transfer are almost identical which

shows the intention of petitioner to overawe the Judicial Officer. On

one hand, Judicial Officers are expected to be fair and impartial and

on the other hand, it cannot be allowed that they may be subjected to

undue harassment by way of moving such baseless applications

seeking transfer of the cases. As observed above, the outlined grounds

in the petition for seeking transfer of the above case mainly roam

around the apprehension of unfair treatment due to expected biasness;

therefore, it is essential to see the legal value of apprehension in such

situation and the concept of biasness.

It is trite that mere apprehension in the mind of a party about

injustice at the hands of presiding officer is no ground for transfer of

a case. In a case reported as “MUHAMMAD NAWAZ Versus

GHULAM KADIR AND 3 OTHERS” (PLD 1973 Supreme Court

327), Supreme Court of Pakistan has dilated upon different principles

ought to govern the disposal of transfer applications of the present

kind which have been spelt out by the judgments of Superior Courts

from time to time. Following judgments are referred in the above cited

case.

Khawaja Ahad Shah v. Mst. Ayshan Begum (77 I C 762), Mula

Naramma v. Mula Rangamma (A I R 1926 Mad. 359), Gopal Singh v.

Emperor (A I R 1928 Lah. 180), Sikandar Lai Pura v. Emperor (A I R

1928 Lah. 975). Ry. Pratap Sinha Raja Sahib v. R.

Srinivasagopolachariar (A I R 1926 Mad. 15), Satiandra Nath Sen and

others v. Emperor (A I R 1929 Cal. 809), Asa Nand v. Emperor (130 I

C 330), Gurdit Singh v. Kahan Chand (A I R 1934 Lab. 593), Girdhari

Lai v. Ashfaq Ali Khan and another (A I R 1934 All. 448), Lalita Rajva

rakshmi and another v. State of Bihar and another (A I R 1957 Pat. 198),

Ghulam Qasim v. Langra and others (P L D 1957 Pesh.109). Ghulam

Qadir Khan v. The Stare (P L D 1957 Lah. 747). Mahabat Khan v. The

Stare and another (P L D 1960 Lab. 1187), Sardar Khan v. The State

and another (P L D 1962 Kar. 77), The State v. Agha Badarudain (P L

D 1962 Kar. 166). Abdul Aziz v. The State and another (P L D 1962

Lab. 56), Refatullah Pramanik and another v. The State and another (P

L D 1965 Dacca 150), and Rahim Bakhsh v. Khalilur Rehman (P L D

1971 Lah 517),

Crl. Misc. 10-T of 2024

and Supreme Court while focusing on the reasonableness of

‘apprehension’ endorsed the observations given in “Rahim Bakhsh v.

Khalilur Rehman” (P L D 1971 Lah 517)supra, which are as follows;

“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.”

In another case reported as “DAUD IQBAL PERVAIZ and another

versus THE STATE” (PLD 1990 Supreme Court 705),

the Supreme Court again while referring Rahim Bakhsh v. Khalilur

Rehman (P L D 1971 Lah 517) supra focused on the reasonableness

of apprehension and held as under;

In case the submission of the learned counsel is accepted then in each

and every case of sensational kind, where the people of the, locality

become agitated and get aroused by the nature of the occurrence, no trial

will be possible in a Court of the district where the occurrence has taken

place, only because of the initial wave of the indignation felt by the local

populace and the attempt of the authorities to see that the accused persons

are arrayed before the Court of law as soon as possible. The acceptance

of such a principle would indeed be fraught with danger and mischief

The safeguard for the accused is that the Court should carefully weigh

whether the apprehension being expressed is really such as a "reasonable

man" might justifiably be expected to have in the facts and circumstances

of the case; if so, it should transfer the case, but, if not, let the case

proceed where it is to be tried normally.”

Thus, mere apprehension in the mind of party is no ground to order

for transfer of case unless it is supported by any material or the

circumstances. In a case reported as “Aqa Syed ASGHAR HUSSAIN

Versus THE STATE” (1968 SCMR 381), Supreme Court says as

under;

“In a case of this nature this Court ordinarily does not interfere with the

order of the High Court. The petitioner's case is solely based on his oral

allegation. The Court before accepting it must be fully satisfied that his

statement is so strongly corroborated by other circumstances that no

reasonable person could possibly doubt its correctness. In the absence

of any such corroboration the learned Single Judge was justified in

refusing to accept the oral allegation of the accused”

6. Supreme Court of Pakistan in another case reported as

“MUHAMMAD ARSHAD versus THE STATE” (1997 SCMR 949),

Crl. Misc. 10-T of 2024

has held that mere on the basis of ‘apprehension’ case cannot be

transferred; factually it was in following terms;

“The fact that the deceased is a brother of the Senior Judge of the High

Court, does not lead to the conclusion that the learned trial Judge is

overawed by this situation. Merely because of this relationship,

presumption cannot be drawn that the learned trial Judge ~is prejudiced

against the petitioner. In order to make out a case for transfer, clear and

cogent averment should be made which may lead to the conclusion that

the conduct of the learned trial Judge is not proper and is prejudiced.

The transfer will be justified if there is a reasonable apprehension in the

mind of a party that the Court would not be able to act fairly and

impartially in the matter. Such impression should not be based on

apprehensions or presumptions but should be substantiated with facts

which tarnished the impartiality of the Court. The principles for

governing disposal of transfer application are set out in Muhammad

Nawaz v. Ghulam Kadir and others (PLD 1973 Supreme Court 327).”

Similarly, in a case reported as “SARDAR KHAN and others Versus

MUHAMMAD AFZAL and others” (2013 PSC Criminal 22),

Supreme Court of Pakistan has declined the request for transfer of

case which was sought on the ground that a senior lawyer of a bar was

murdered and no counsel from that district was ready to accept brief

of the accused.

7. Bias of a judge can be projected or highlighted through petition

for seeking transfer of case, if it is ascertained from his action or from

any other material on the record. Supreme Court of Pakistan while

dealing with application for transfer of case highlighted different

situations as examples of bias for disqualification of judge to hear the

case and held that if bias is based on pecuniary or proprietary interest,

small the interest may be, it operates as a disqualification but mere

suspicion of bias, even it is not unreasonable, is not sufficient to

render decision void. Case reported as “Ms. BENAZIR BHUTTO

versus THE PRESIDENT OF PAKISTAN and another” (1992 SCMR

140) is referred in this respect.

The Supreme Court of India in a case reported as, “MANAK

LAL, Advocate Versus DR. PREM CHAND SINGHVI and others”

(PLD 1957 Supreme Court (Ind.) 346), observed that in dealing

with cases of bias attributed to members constituting tribunals, it is

necessary to make a distinction between pecuniary interest and

prejudice so attributed. It is obvious that pecuniary interest however

small it may be in a subject-matter of the proceedings, would wholly

Crl. Misc. 10-T of 2024

disqualify a member from acting as a Judge. But where pecuniary

interest is not attributed but instead a bias is suggested, it often

becomes necessary to consider whether there is a reasonable ground

for assuming the possibility of a bias and whether it is likely to

produce in the minds of the litigant or the public at large a reasonable

doubt about the fairness of the administration of justice, it would

always be a question of fact to be decided in each case. Supreme Court

focused on the relevant principle as under;

“The principle, says Halsbury, nemo debt esse judex in causa propria

sua, precludes a justice who is interested in the subject-matter of a

dispute, from acting as a justice therein". (Halsbury's Laws of England

Vol. XXI, p. 535 para. 952). In our opinion, there is and can be no doubt

about the validity of this principle and we are prepared to assume that

this principle applies not only to the justices as mentioned by Halsbury

but to all tribunals and bodies which are given jurisdiction to determine

judicially the rights of parties”

Likewise, Federal Court of Pakistan in an elaborated judgment

reported as “ANWAR and another versus THE CROWN” (PLD 1955

Federal Court 185) has given a detailed expression of bias; one of

kinds as arising from bribery was referred in above judgment in

following terms;

As regards the bias arising from bribery, reference may usefully be made

to' Lord Bacon's impeachment before the House of Lords. Though judicial

bribery was rampant in the England of Bacon's times, the practice was

pronounced as most culpable and disgraceful. In one of his vigorous

sermons Hugh Latimer thus denounced this vice:

“I am sure this is scala inferni, the right way to hell, to be covetous, to

take bribes, and pervert justice. If a Judge should ask me the way to hell.

I would show him this way. First, let him be a covetous man; let his heart

be poisoned with covetousness. Then let him go a little farther, and take

bribes; and, lastly, pervert judgment: Lo, there is the mother, and the

daughter, and the daughter's daughter. Avarice is the mother; she brings

forth bribe-taking, and bribe-taking perverting of judgment. There lacks a

fourth thing to make up the mess, which, so help me God, if I were a

Judge, should be hangum tuum, a Tyburn tipped to take with' him; and it

were the Judge of the King's Bench my Lord Chief Justice of England,

yea, and it were my Lord Chancellor himself, to Tyburn with him. He

that took the silver basin and ewer for a bribe, thinketh that it will never

come out. But he may now know that I know it, and I know it not alone;

there be more beside me that know it. Oh, briber and bribery! He was

never a good man that will so take bribes. It will never be merry in

England till we have the skins of such'.

Bias of a magistrate or judge can also be gauged from the fact that he

has not allowed the prosecutor to conduct trial and himself took the

position as prosecutor, then whole trial stands vitiated as held in

“Adan Haji Jama and others v. The King” (1948 A C 225), which

Crl. Misc. 10-T of 2024

has been referred in above cited reported case “ANWAR and another

versus THE CROWN” (PLD 1955 Federal Court 185).

8. As cited above, Halsbury says that the principle, “nemo debt

esse judex in causa propria sua” precludes a justice who is interested

in the subject-matter of a dispute, from acting as a justice therein". 1

It is the principle of Natural Justice. According to this maxim, the

authority giving decision must be composed of impartial persons and

should act fairly, without prejudice and bias. This principle also gets

light from a case of UK Court reported in Pakistan as “TERRANCE

WILLIAMS Versus PENNSYLVANIA” (2016 SCMR 1561), in following

terms;

At common law, a fair tribunal meant that "no man shall be a judge in his

own case." 1 E. Coke, Institutes of the Laws of England §212, *141a

("[A]liquis non debet esse judex in propiâ causâ"). That common-law

conception of a fair tribunal was a narrow one. A judge could not decide

a case in which he had a direct and personal financial stake. For example,

a judge could not reap the fine paid by a defendant. See, e.g., Dr.

Bonham's Case, 8 Co. Rep. 107a, 114a, 118a, 77 Eng. Rep. 638, 647, 652

(C. P. 1610) (opining that a panel of adjudicators could not all at once

serve as "judges to give sentence or judgment; ministers to make

summons; and parties to have the moiety of the forfeiture"). Nor could he

adjudicate a case in which he was a party. See, e.g., Earl of Derby's Case,

12 Co. Rep. 114, 77 Eng. Rep. 1390 (K. B. 1614). But mere bias-without

any financial stake in a case-was not grounds for disqualification. The

biases of judges "cannot be challenged," according to Blackstone, "[f]or

the law will not suppose a possibility of bias or favour in a judge, who is

already sworn to administer impartial justice, and whose authority greatly

depends upon that presumption and idea." 3 W. Blackstone,

Commentaries on the Laws of England, 361 (1768) (Blackstone); see also,

e.g., Brookes v. Earl of Rivers, Hardres 503, 145 Eng. Rep. 569 (Exch.

1668) (deciding that a judge's "favour shall not be presumed" merely

because his brother-in-law was involved).

9. Similar principle is in vogue in our jurisdiction as embodied in

section 556 of Cr.P.C which is reproduced as under;

556. Case in which Judge or Magistrate is personally interested: No

Judge or Magistrate shall, except with the permission of the Court to

which an appeal lies from his Court, try any case to or in which he is a

party, or personally interested, and no Judge or Magistrate shall hear an

appeal from any judgment or order passed or made by himself.

Explanation: A Judge or Magistrate shall not be deemed a party, or

personally interested, within the meaning of this section, to or in any

case by reason only that he is a Municipal Commissioner or otherwise

concerned-therein in a public capacity, or by reason only that he has

viewed the place in which an offence is alleged to have been committed,

or any other place in which any other transaction material to the case is

alleged to have occurred, and made an inquiry in connection with the

case.

---------------------------------------

1. (Halsbury's Laws of England Vol. XXI, p. 535 para. 952)

The basis of the disqualification, therefore, is "personal bias or

prejudice" of such a nature as would necessarily render a Judge unable

to exercise his functions impartially in a particular case, and this must

be shown as a matter of fact and not merely as a matter of opinion. In

the absence of any constitutional or statutory bar a Judge is not

disqualified from sitting at a trial of a person merely because previously

he had participated in other legal proceedings against the same person,

whether in the capacity of a Judge or of an Administrative Tribunal or

official, it makes no difference. There is abundant authority from the

American Jurisdiction to support tire view that the mere fact that a Judge

has dealt with another matter concerning the same person in another

capacity does not necessarily disqualify him from sitting as a Judge at

the trial of that person.”

The Supreme Court has finally regarded such types of objections as

baseless while holding in following terms;

To accede to such a plea of bias would lead to very fantastic results, for,

then even a Judge who may have refused to grant ad interim bail or

injunction in a pending cause or appeal would find himself disqualified

from hearing the appeal. Similarly, a judge who may have given a

decision in one matter against a particular person in one capacity would

be disqualified from being a Judge in any other matter in which the same

person is a party for ever. This is clearly not the law and it could never

have been the intention of the law to impute such universal bias to

Judges.

10. In “TERRANCE WILLIAMS Versus PENNSYLVANIA” (2016

SCMR 1561) cited above, it is referred that in America, National and

State legislatures enacted statutes and constitutional provisions that

diverged from the common law by requiring disqualification when the

judge had served as counsel for one of the parties. The first federal

recusal statute, for example, required disqualification not only when the

judge was "concerned in interest," but also when he "ha[d] been of

counsel for either party, but many States followed suit by enacting

similar disqualification statutes or constitutional provisions expanding

the common-law rule, (deciding that it was for the judge to choose

whether he could fairly adjudicate a case in which he had served as a

lawyer for the plaintiff in the same action). Courts applied this expanded

view of disqualification not only in cases involving judges who had

previously served as counsel for private parties but also for those who

previously served as former attorneys general or district attorneys. It was

held as under;

“This expansion was modest: disqualification was required only when

the newly appointed judge had served as counsel in the same case. In

Carr v. Fife, 156 U. S. 494 (1895), for example, this Court rejected the

argument that a judge was required to recuse because he had previously

served as counsel for some of the defendants in another matter. Id., at

497-498. The Court left it to the judge "to decide for himself whether it

was improper for him to sit in trial of the suit." Id., at 498. Likewise, in