LAHORE: The Multan sessions judge has dismissed an application against the transfer of the trial of Bahauddin Zakariya University (BZU) former faculty member, Junaid Hafeez, to a different additional sessions judge.
In its judgement, sessions judge Abdul Rashid Abid said that the case was transferred away from the court of judge Muhammad Abbas on the directives of the Lahore High Court. He said that the case was now part-heard and the trial was almost in the final stage, therefore, he was not empowered under Section 528 of the Criminal Procedure Code (CrPC) to issue a transfer order, sending the case back to Muhammad Abbas’s court.
In his application, Hafeez’s counsel had pleaded that since the adjudication started in 2013, the case got transferred from one judge to another six times. The sixth judge to hear the case from May 2017 onwards, additional sessions judge Muhammad Abbas, was now being transferred to a different court in the Multan sessions division, he said.
During the hearing last week, Hafeez’s counsel told the court that since May 2017, Judge Abbas presided over recording of crucial evidence including the statement of star prosecution witness Muhammad Saleem, an IT expert with Multan police, who investigated and collected alleged electronic and digital evidence against Hafeez. Jamal pleaded that since the case had been categorised as a direction case [which must be heard and concluded without any delay], judge Muhammad Abbas should be allowed to adjudicate it since he is aware of the facts as well as the demeanour of witnesses cross examined.
Commenting on the dismissal of his application, the counsel said, “The District Judge is wrong in holding that the new judge has started hearing the case. No hearing has taken place before the new judge.
District Judge’s order of dismissal is based on two pillars. One, that the case’s transfer took place as a result of high court order which directed setting up of model courts for speedy disposal. Two, more importantly, that the new judge has started hearing the case and that the new judge has assured early disposal. And since new judge has assumed the case therefore it is ‘part heard’ case which the district court is not empowered to transfer as section 28 CrPC prohibits it. This is legally and factually wrong.
Firstly, since the new judge took charge, there has been no hearing before him, therefore, it has not become ‘part heard’ before him. Secondly, a high court’s direction to set up model court cannot be implemented in violation of the law (section 28CrPC) which says cases part heard by one judge cannot be transferred. Therefore, if the judge is transferred from one court room to another in the same district judiciary then he should also hear the cases he is already hearing. The case for non-transfer is even stronger for cases which are about to conclude so that the right to a fair trial is guaranteed. Because the judge who has heard a major part of the case only he can fairly decide the case (unless one of the parties alleges bias or other external factors at work).”
Published in Daily Times, February 2nd 2018.