[Section 526, Cr.P.C.]
Principle governing transfer application. The transfer of a criminal case from a 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 the parties arraigned before the 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 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 reasonable apprehension must be decided in each case with reference to the incident and the surrounding circumstance; and the Court must endeavour, as far as possible, to place himself 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 degree of intelligence possessed by him. Nonetheless it is not every incident regarded as unfavourable by the applicant which would justify the transfer of the cause. 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. (Case transferred to High Court.) (SC) PLD 1973 SC 327 Muhammad Nawaz v. Ghulam Qadar.
Justice should not only be done but should be seen to have been done. Case transferred. PLD 1978 Lah. 235. Barkat Ali v. Bashir Ahmed.
While hearing transfer application judge to put himself in the shoes of the petitioner and then to see whether apprehension shown by the petitioner is genuine or not. PLJ 1990 Cr.C. (Kar.) 243. Mirza Mubarik Ahmed.
High Court to consider whether the apprehension may be expected to exist in person of standard of intelligence and honesty of class to which the party belongs and not whether apprehension is reasonable. Complainant's witnesses not heard after recording statement of the Complainant and Court fixed date for arguments. Apprehension the complainant that he will not get justice held sufficient for the transfer of the case. PLD 1962 Kar. 77 Sarwar Khan. AIR 1925 Lah. 101 Ahmed Din v. King Emperor (Reasonable apprehension what is?)
Bias. Real bias in the Judge is unnecessary. Circumstances justifying applicant in entertaining the apprehension are enough. AIR 1925 Lah. 361 Amar Singh v. Sadhu Singh. ILR 3 Lah. 443 Sardari Lal v. Emperor.
Words and actions of judicial officer though susceptible of explanation and traceable to superior sense of duty, when causing in the mind of the accused apprehension not foolish or unfounded that he may not have impartial trial, it is in the interest of justice to transfer the case. PLD 1979 Kar. 188 Ghulam Nabi.
Powers of High Courts to transfer case not controlled by Crown. Crown may not desire transfer but the case may be transferred in the interest of justice. First informant in a murder case had reason not to trust the police of the district. Case transferred. PLD 1955 Lah. 402 Crown v. Mian Hussain etc.
Party interested in section 526, Cr.P.C. Complainant witness and persons lodging FIR could be interested party. The question is to be decided on the facts of each case. PLD 1975 Kar. 222 Pandhi.
First informant is an interested person and can move for transfer of the case. PLD 1962 Kar. 864 Muhammad Khan.
Uncle of deceased in case under section 302, PPC, an interested party and entitled to move for transfer of the case. (DB) PLD 1962 Dacca 192 Kanchan Ali v. Shahjahan.
District Magistrate to be moved first before application is made to the High Court. High Court will interfere only in the last resort. 72 lnd. Cas. 882 Ghulam Nabi v. Jawala 34 Cr.LJ 466 = 40 Cr.LJ 127 Mohiud Din v. Emperor. Overruled by: (SC) 1971 SCMR 721 Fazal Karim. (Law amended since).
District Magistrate cannot transfer cases. Power lies with the Sessions Judge. Order set aside. 1978 P.Cr.LJ 624. Hayat v. Nusrat Ali (Law amended).
Right to move High Court under section 526, Cr.P.C. is independent and not controlled by any condition other than those mentioned in section itself. Person seeking transfer not obliged to move Sessions Judge or District Magistrate first. (SC) 1971 SCMR 721 Fazal Karim.
Procedure on transfer of a case to High Court under section 526, Cr.P.C. from the Court of Magistrate would be the same as that of the Court of a Magistrate. PLD 1956 Lah. 848 Ghulam Sarwar v. Niaz Ali; PLD 1958 Lah. 747 Mushtaq Ahmad Gurmani v. `Z.A. Suleri.
Case exclusively triable by Sessions Court cannot be transferred to High Court unless committed to Sessions Court. (DB) 1969 P.Cr.LJ 583 dissented from 1973 P.Cr.LJ 507.
Transfer of case from one High Court to another under Article 186-A of the Constitution; inconvenience only to a party or the Court where the case has been instituted has no jurisdiction is not sufficient ground. The plea of lack of jurisdiction is to be taken before the High Court where the case is pending and if the case is decided against him by the High Court the petitioner may approach the Supreme Court. 1994 SCMR 1031, Muslim Commercial Bank Rawalpindi v. Muslim Commercial Bank Karachi.
Transfer from one High Court to other under High Courts (Establishment) Order (P.O. 8 of 1970), Article 9 Transfer sought from High Court S to High Court at L. Question whether High Court S had jurisdiction or not to be agitated first before High Court. Petitioner advised to approach the Supreme Court only after an adverse decision given by High Court S. (SC) 1974 SCMR 41. Capital Development Authority, Islamabad v. Hayadri Construction Co. Ltd. Karachi.
Transfer of case from Peshawar High Court to Lahore High Court to avoid conflict of decision on two writ petitions, allowed by Supreme Court under Article 98 of 1962 Constitution. (SC) 1972 SCMR 58 Pindi Hazara Transport v. Government of NWFP.
Transfer to High Court under its extraordinary criminal original jurisdiction. An ex-Governor of West Pakistan murdered. Case received undue publicity creating reasonable apprehension in the mind of the accused against a fair trial. Case transferred to High Court. 1969 P.Cr.LJ 1058 Malik Asad Khan.
Case against S.S.P. and other senior police officers; transferred from the Court of A.C. to that of Sessions Judge, Lahore for apprehension that the Magistrate may not be able to do justice where senior police officers were involved. NLR 1986 Cr. 733 Liaqat Ali Butt.
Atmosphere at place of trial hostile. Accused police officials. Defence witnesses finding it unsafe to give evidence. District Magistrate and executive functionaries showing over zeal though actions taken by them within law. Apprehension of enquiry not being fair and impartial. Case transferred. PLD 1962 Lah. 56 Abdul Aziz. Case transferred from Karachi to Lahore. 1968 P.Cr.LJ 1675 Shamsud Din.
Transfer of Criminal case from one district to another on reference by the Sessions Judge to the High Court allowed by the High Court when both the parties also agreed to it with a direction for the expeditious disposal of the case. NLR 1989 Cr. 572. Akhtar Hussain Shah etc. v. Muhammad Ramzan.
Transfer of trial from one district to another in a murder case. It is to be considered whether in given circumstances alleged apprehension of not getting a fair trial is an apprehension that a reasonable man justifiably be expected to entertain. PLJ 1990 SC 303. Daud Iqbal Pervaiz.
Danger to complainant's life apprehended and hostile atmosphere, held, to be valid grounds for transfer of a case to another District. NLR 1989 Cr. 32. Mubarak Ali.
Legal aid denied by local Bar, case transferred. NIR 1986 Cr. 743 Haji Mehr Khan.
Atmosphere most unsafe and uncongenial at place of occurrence and trial. Parties wielding great influence with large number of supporters. Case transferred to another district. PLD 1979 Lah. 346 Munawar Ali Khan v. Najam Abbas etc. PLJ 1979 Cr.C. (Lah.) 69.
Apprehension of personal safety and person interested. Person lodging first information report is person interested and entitled to apply for transfer of the case. Apprehension of personal safety and convenience of party are sufficient grounds for transfer. PLD 1962 Kar. 864 Muhammad Khan.
Complainant an influential person and danger to life of the petitioner. Previous enmity between parties. Case transferred. PLD 1973 Lah. 238. Hussain Bakhsh v. Ghulam Mustafa. 1974 P.Cr.LJ 116.
Desperate and influential opposite party threatening the petitioner with dire consequences. Transfer of the case refused but the Court directed the police to provide escort to the petitioner to and from the Court. (SC) 1970 SCMR 536 Mst. Sharam Khatoon.
Case transferred from Magistrate, Haroonabad to Lahore, when application filed at Lahore in High Court that it was unsafe for the female petitioner to go for trial to Haroonabad for offences u/Ss. 420, 468, 471, PPC. NLR 1987 Cr. 594 Mst. Shameem Akhtar.
Physical harm. Transfer petition by a woman on the ground of physical harm by the accused if she travelled to the Court of trial Magistrate. Transfer application rejected. Police directed to provide escort from her village to Court and back. (SC) 1971 SCMR 374 Muhammad Nawaz v. Mst. Sakina.
Danger of involvement in further criminal cases. Circumstances of petitioner's prosecution in district L are far from ordinary. Petitioner's apprehension in the circumstances regarding his safety during his presence in district L and possibility of his involvement in further criminal cases, held cannot be said to be unjustified. Case transferred to district Hyderabad. (SC) 1973 SCMR 203 Abdul Hamid Jatoi.
Second transfer application by same party-Review of Order. A transfer application dismissed by the High Court in the absence of petitioner's counsel, after considering report of the Magistrate concerned. Fresh application on the same grounds can be heard. Though section 369, Cr.P.C. prevents alteration of a judgment by the trial Court after it has been signed was not applicable to the case. The principle of finality of order has to be kept in view. This principle is not subject to the qualification that it is only to be applied where justice demands it or that it does not apply to interlocutory orders. High Court has the power to transfer a case suo motu on any grounds. When the circumstances were pointed out by the counsel the High Court transferred the case suo motu on 2nd application. PLD 1956 Lah. 505 Munir Hussain v. Crown.
Other party not given a notice. The District Magistrate transferred a case under section 145, Cr.P.C. without giving notice to the other party. Cases remanded by High Court to District Magistrate to decide it afresh after notice to the other party. 1974 P.Cr.LJ 578 Muhammad Khan v. Ghulam Jilani.
Notice to the first informant for the transfer of the case is not a must. He may be an interested party according to the facts of a particular case. But transfer order cannot be set aside because maker of FIR had no notice. PLJ 1975 Cr.C. (Kar.) 38 Pandhi.
Cases transferred on joint request of parties when transfer was being sought for suspicion only. PLJ 1995 Cr.C. (Lah.) 16, Mushtaq Hussain Shah v. Sana Ullah etc.
Notice to the other party. Section 526, Cr.P.C. does not provide for giving a notice to the other party. The issue of a notice is not mandatory and the want of notice does not amount to an illegality but certainly it does amount to impropriety. PLD 1958 Pesh. 42 Muhammad Amir.
" (In this case complainant had got the case transferred without notice to the accused).
Transfer without notice to the accused. Transfer by High Court, on complainant's application, of case for trial before itself, before summons being issued by Magistrate. Accused a person of official status. Order of transfer made without notice to the accused held in order. (SC) PLD 1963 SC 51 Ali Nawaz v. Muhammad Yousaf.
" the transfer of a case to another Magistrate without notice to the accused is not illegal. 43 Cr.LJ 278 Kumara Swamy etc. 197 IC 799.
Transfer without notice, to opposite party is not illegal. AIR 1926 Lah. 156. Bagh Ali v. Muhammad Din.
State-opposite party and complainant. Opposite-party in a murder case is the State and not the relative of the deceased or the first informant. Such person is not entitled to notice when transfer application is being moved. (SC) 1970 SCMR 484 Zulfiqar v. Zulfiqar etc.
Grant of bail is no ground for transfer of the case. Held, High Court rightly rejected transfer application. PLJ 1980 SC 82. Muhammad Ishaq v. Muhammad Nawaz Malik.
Grant of bail after the stay of proceedings under section 526, Cr.P.C. raises a reasonable apprehension in the mind of the opposite-party that he may not have a fair trial. Case transferred. 1971 P.Cr.LJ 555 Nazir-ud-Din.
Grant of bail after stay of proceedings. Complainant moved the High Court for the transfer of the case and proceedings were stayed. Subsequently the Sessions Judge admitted the accused to bail. Cancellation of bail, sought on the ground that after the proceedings were stayed the Sessions Judge was not competent to grant bail. Held, bail application filed subsequently was not a part of the main case being tried. The order granting bail held to be valid. The Court can deal with extraneous or emergent matters. PLJ 1973 Lah. 251 = 1973 P.Cr.LJ 1050 Abdul Ghafoor. (Law has been changed since).
Failure to stay the proceedings under section 526 (8), Cr.P.C. After a petitioner makes an application under section 526, Cr.P.C. to the trial Court the proceedings must be stayed. Where proceedings are not stayed the proceedings are null and void for want of competence and cannot be cured under section 537, Cr.P.C. (DB) PLD 1956 Kar. 440 Hayder Jaffery v. Crown. PLD 1950 BJ 64 Sehat Khatoon v. Crown. (Law changed since).
Magistrate not to proceed with the case till receipt of order from the High Court when the case is adjourned and a transfer application is made to the High Court. PLD 1965 Lah. 382 Abdul Sattar v. Muhammad Yousaf.
Stay of proceedings. First application for the transfer of the case in High Court order staying proceeding is not necessary. In the subsequent application under section 526, Cr.P.C. the Magistrate is not bound to adjourn proceedings unless he receives an order from a competent Court to do so. (FB) 44 Cr.LJ 751 Mahmood Hussain v. Emp. 208 I C 242. (Note: Now sec. 526 (B) has been amended and the Magistrate is not bound to stay the proceeding even at the first transfer application but he cannot pronounce the final order or judgment, until he receives information from the High Court about the disposal of the application).
Inquiry for section 302/34, P.P.C. not transferred from P to S on the ground that S was convenient for eye-witness who were likely to be won over by accused in S jail. PLJ 1974 Cr.C. (Lah.) 522 Manzoor Ahmed.
Court summoning accused to Court who had been found innocent by the police and placed in column No. 2 of report. Magistrate summons accused under clause (b) of section 190 (1) Cr.P.C. and not under clause (c) of that section. Transfer of the case refused. 1970 P.Cr.LJ 1316 Ali Muhammad.
Expression of opinion by a Magistrate in one case is no ground for getting the cross-case transferred from the Magistrate. (DB) PLD 1956 Kar. 421 Seigeried Forstner v. Miss Sumro.
Magistrate a defendant in official capacity in civil proceeding filed by the petitioner is no ground for the transfer of a case. PLD 1975 Lah. 695 Muhammad Afzal.
Irregularity in proceedings. Examining the accused under section 342, Cr.P.C. before the prosecution evidence is closed or allowing inadmissible pieces of evidence to be brought on the record are not ground for the transfer of a case. (DB) 43 Cr.LJ 48 Munar Pandey v. Emp.
Passing of wrong order or violation of procedure by itself is not sufficient for the transfer of a criminal case. 1977 P.Cr.LJ 677. Muhammad Mustafa etc.
Mere apprehension of being convicted is no ground for transfer. Apprehension of an unfair trial is a ground for transfer. 43 Cr.LJ 71 Chuni Lal 196 IC 816.
Defence counsel not given time to prepare the case, on application of the accused case transferred. NLR 1991 Cr. 290 Muhammad Aslam.
S.D.M. taking bail under section 117 (3), Cr.P.C. but ordering verification by Mukhtiarkar and the petitioner remaining in jail. Apprehension in the mind of the petitioner that he will not have justice from the S.D.M. Case transferred from the Court. 1974 P.Cr.LJ 187 Aziz Ullah.
Cross-cases. Court should dispose of cross-cases together. Expression of opinion in one case gives reasonable apprehension in the other. Transfer ordered. AIR 1934 Lah. 458 Babu v. Emperor.
Magistrate recording dying declaration, deemed to be a witness and interested in prosecution. Case transferred. (DB) PLD 1965 Dacca 150 Kefatullah v. Irshad Ali Mondal.
Bailable warrants issued. Magistrate issued bailable warrants of arrest without waiting for the return of summons issued in the first instance. Held, that it is a good ground for the transfer of the case. PLD 1961 Kar. 675 Muhammad Siddiq.
Issue of warrants in undue haste. Record showing that the Magistrate issued warrants in undue haste. High Court can suo motu transfer case to another Magistrate. PLD 1958 BD 1 Iqbal Hussain v. Irshad Hussain.
Harsh tone and losing temper by Magistrate. Case transferred. 1973 P.Cr.LJ 829 Meraj Din.
Magistrate using harsh tone but done only to maintain decorum of Court. Held, losing temper by Magistrate not justified. Such circumstances could create apprehension in the mind of the petitioner that he may not get justice. Case transferred. 1973 P.Cr.LJ 829 Meraj Din.
Magistrate receiving hospitality, of son of complainant, case transferred. AIR 1926 Lah. 347. Narain Singh.
Transfer when P.W. friend of Magistrate and complainant. Case should be transferred. AIR 1926 Lah. 410. Tirlok Singh.
Prolonging the case by one witness a day during the trial. Case transferred. AIR 1926 Lah. 78. Narain Dass etc.
Transfer of murder case for reason of frequent adjournments ordered, when adjournments were found to be without merit. PLJ 1991 Cr.C. (Lah.) 144 Jan Muhammad v. Khursheed etc.
Magistrate adjourning case without reasons on several hearings. Case transferred 1978 P.Cr.LJ 169. Sh. Muhammad Maskin.
Magistrate acting in manner giving semblance of an idea of his not proceeding in accordance with law. Inquiry on complaint under section 302, P.P.C. cannot be entrusted to him. 1973 P.Cr.LJ 882 Muhammad Anwar v. Qurban Ali.
District Magistrate displaying "great zeal" and taking `undue interest' in the prosecution of the case against the accused. Case transferred. PLD 1962 Kar. 678 Bhura Khan.
Magistrate's adverse remarks. Prevaricating statement of witness provoking Magistrate to remark, "I should arrest him now" intending thereby to proceed against the witness who had favoured the accused. Held, it created reasonable apprehension in the mind of the accused. The Magistrate should have taken action after the conclusion of the trial. Case transferred. (SC) 1970 SCMR 694. Mian Muhammad Rashid.
Discrimination ground for transfer. The Court waited for the prosecution counsel and adjourned the case but when counsel for the accused was not present the Magistrate did not wait when requested and proceeded with the case. Case transferred. 1973 P.Cr.LJ 515 Faqir Muhammad.
Court exercising pressure on accused to produce absconding accused. Good ground for the transfer of the case. (DB) PLD 1960 Dacca 981 Jagabandu.
Magistrate trying a particular type of cases (corruption) over a long time may unconsciously develop a mentality which may hinder even-handed justice. The Magistrate, acting as Special Judge went out of his way to condemn a prosecution witness who in cross-examination stated that he had grudge towards the accused. Case transferred. PLD 1957 Lah. 841 Bashir Ahmed.
Magistrate offering seat to the complainant on the dais and accommodating him in his retiring room are circumstances enough to raise reasonable apprehension in the mind of the petitioner that he may not have a fair trial. Case transferred. PLD 1976 Lah. 598 Shahid Azizi. PLJ 1976 Lah. 253.
Magistrate getting information before the commencement of the proceedings before him; there is reasonable apprehension that the information received by the Magistrate may subconsciously influence his mind, and the decision Transfer justified. 48 Cr.LJ 661 Devi Dayal v. Emp.
Government notification to transfer a part-heard case from L to K against the wishes of the parties and their convenience held invalid and set aside. Case transferred to L. 1973 P.Cr.LJ 240 Mubarik Ali.
Cases under Martial Law in the Court of a Magistrate, Section 526, Cr.P.C. applies. (DB) PLD 1959 Lah. 171 Fateh Muhammad.
Forfeiture of bond. District Magistrate stayed further proceedings before a subordinate Magistrate. Magistrate could not forfeit bond executed under section 526, Cr.P.C. in respect of transfer application. PLD 1951 Dacca 71 Khondar Akbar Ali v. Crown.
From one High Court to another. Supreme Court has no jurisdiction to transfer a case from one High Court to another under the Constitution or any other law. PLD 1977 SC 1. Mir Hassan v. Tariq Saeed etc. (Also see section 527, Cr.P.C. re-transfer of case by Provincial Govt.) Supreme Court is not empowered to order transfer of a case from file of a Judge of High Court. 1977 SCMR 514 Z.A. Bhutto.
Transfer to Sessions Court. High Court can transfer a case from the Court of a Magistrate Ist class to the court of Sessions Judges as it is a Court of superior jurisdiction to that of the Magistrate. PLJ 1977 Lah. 51 Nisar Ahmed.
Case cannot be transferred by the Sessions Judge u/s. 528 (1A) Cr.P.C. when the trial has already begun by the A.S.J. PLJ 1996 Cr.C. (Lah) 673, Muhammad Jahangir Iqbal.
Convenience of accused is to be considered rather than that of the complainant for the transfer of the case. AIR 1926 Lah. 493 Sohan Lal v. Gopal Singh.
Transfer of case for convenience of accused in a challan case is preferable to the convenience of the complainant. Hudood case transferred. NLR 1984 Cr. 698 Muhammad Jamshed.
Transfer of case under Suppression of Terrorist Activities Act by Sessions Judge from the Court of another Special Court presided over by Addl. Sessions Judge is without jurisdiction. Only High Court can transfer the case u/S. 4A of the Act, and transfer cannot be ordered without notice to the accused. (DB) NLR 1999 Cr. 243, Nazim Hussain Shah.