PLJ 2024 Cr.C. 1061
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad
Amjad Rafiq, J.
MEHMOOD--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 10-T of 2024, decided on 29.4.2024.
Criminal Procedure Code, 1898 (V
of 1898)--
----S. 526--Transfer of a criminal case--Apprehension--Party is no
ground to order for transfer of case unless it is supported by any material or
circumstances--Petition for seeking transfer of case, if it is ascertained from
his action or from any other material on 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 case and
held that if bias is based on pecuniary or proprietary interest, small 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-- However, a little
deviation in principle with respect to district Courts is found in our
jurisdiction in sense that a Magistrate--Adversaries in a criminal prosecution,
no doubt, are private parties but State as an important and impartial pillar in
between two through institution of Public Prosecution, is expected to ensure
fair trial, due process and equal opportunities to both parties so as to fade
out impression of bias in mind of a judge against any party--As per para 4.17
of Code of Conduct for Prosecutors issued under Section 17 of Punjab Criminal
Prosecution Service (Constitution, Functions and Powers) Act, 2006 it is duty
of a prosecutor that in accordance with law or requirements of fair trial, he
shall seek to ensure that all necessary and reasonable enquiries are made and
responses taken into account while taking prosecutorial decisions-- In light of
above discussion, it was observed that counsel for petitioner has not pointed
out any material through which it could be inferred that Magistrate is
personally interested in case or is biased towards petitioner in any
manner--Allegation of bribery was also not made expressly nor advocated
vigorously; so much so, it was conceded that trial is at initial stage,
therefore, mere on basis that magistrate is caste fellow of counsel for
complainant and is conducting trial expeditiously, alleged biasness cannot be
anticipated at this stage of proceedings; therefore, this petition merits
outright dismissal which is dismissed accordingly with no orders as to costs. [Pp. 1065, 1066 & 1072] A, C, G, H
& I
1992
SCMR 140.
Transfer of Case--
----Supreme Court of Pakistan has declined request for transfer
of case which was sought on ground that a senior lawyer of a bar was murdered
and no counsel from that district was ready to accept brief of accused. [P. 1066] B
2013 PSC Criminal 22.
Pecuniary Interest--
----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 proceedings, would wholly 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 possibility of a bias and whether it
is likely to produce in minds of litigant or public at large a reasonable doubt
about fairness of administration of justice, it would always be a question of
fact to be decided in each case.
[P.
1067] D
PLD 1955 Federal Court
185.
Bias of a Judge--
----Bias of a
magistrate or judge can also be gauged from fact that he has not allowed
prosecutor to conduct trial and himself took position as prosecutor, then whole
trial stands vitiated.
[P.
1068] E
1984 AC 225.
“Nemo debt esse Judex in Causa Propria Sua”--
----Principle--The
principle, “nemo debt esse judex in causa propria sua” precludes a
justice who is interested in subject-matter of a dispute, from acting as a
justice therein”-- It is principle of Natural Justice--According to this maxim,
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. [P.
1068] F
2016 SCMR 1561.
Mr.
Shahrukh Zaman Baloch, Advocate for Petitioner.
Mr.
Zafar Iqbal Soomro, Deputy District Public Prosecutor on Court’s Call.
Date of
hearing: 29.4.2024.
Order
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.
2. 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.
3. Heard. Record perused.
4. 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 further 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.
5. 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 (AIR 1926 Mad. 359), Gopal
Singh v. Emperor (AIR 1928 Lah. 180), Sikandar Lai Pura v. Emperor
(AIR 1928 Lah. 975). Ry. Pratap Sinha Raja Sahib v. R.
Srinivasagopolachariar (AIR 1926 Mad. 15), Satiandra Nath Sen and others
v. Emperor (AIR 1929 Cal. 809), Asa Nand v. Emperor (130 I C 330), Gurdit
Singh v. Kahan Chand (AIR 1934 Lab. 593), Girdhari Lai v. Ashfaq Ali
Khan and another (AIR 1934 All. 448), Lalita Rajva rakshmi and another
v. State of Bihar and another (AIR 1957 Pat. 198), Ghulam Qasim v.
Langra and others (PLD 1957 Pesh.109). Ghulam Qadir Khan v. The Stare
(PLD 1957 Lah. 747). Mahabat Khan v. The Stare and another (PLD 1960
Lab. 1187), Sardar Khan v. The State and another (PLD 1962 Kar. 77), The
State v. Agha Badarudain (PLD 1962 Kar. 166). Abdul Aziz v. The State
and another (PLD 1962 Lab. 56), Refatullah Pramanik and another v. The
State and another (PLD 1965 Dacca 150), and Rahim Bakhsh v. Khalilur
Rehman (PLD 1971 Lah 517), and Supreme Court while focusing on the
reasonableness of ‘apprehension’ endorsed the observations given in “Rahim
Bakhsh v. Khalilur Rehman” (PLD 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
(PLD 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), 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 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
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.
Illustration
A, as Collector, upon consideration of
information furnished to him directs the prosecution of S for a breach of the
Excise Laws. A is disqualified, from trying this case as a Magistrate.
Magistrate or Judge however, shall not be considered as party or
personally interested if the situation is like one mentioned in the explanation
attached to above section. In a case reported as “Islamic Republic of
Pakistan Through Secretary, Ministry Of Interior And Kashmir Affairs, Islamabad
versus Abdul Wali Khan, M.N.A., Former President of Defunct National Awami
Party” (PLD 1976 Supreme Court 57), when an objection was raised about
sitting of two honourable judges in the bench on the basis of personal bias,
collected from the facts that one honourable judge before his elevation was a
Secretary in the Ministry of Law and Parliamentary Affairs, Government of
Pakistan, he might have, in that capacity, had occasion to deal with the
question of the banning of the National Awami Party at some stage or the other,
but Supreme Court rejected such objection with the observation that the
examination of the question of the banning of the Party was done mainly by the
Ministry of Interior, Government of Pakistan and not the Ministry of Law.
Similarly, allegation against other honourable judge was that since he has
already dealt with the question of the continuance of the detention of Mr.
Abdul Wali Khan and some other leaders of the National Awami Party as Chairman
of the Advisory Board, constituted under clause (iv) of 8 Article 10 of the
Constitution of the Islamic Republic of Pakistan, 1973, he has already dealt
with the bulk of the material which forms the basis for the banning of the
Party as well and, therefore, he must be held to have made up his mind one way
or the other and thus disqualified himself from sitting on the Bench. It was
responded by the Supreme Court that it cannot be treated as a sufficient ground
for disqualifying the judge and observed as follows;
“As pointed out by the learned editors of
American jurisprudence even “at common law bias or prejudice on the part of a
Judge, not the result of interest or relationship, is not supposed to exist,
and generally it does not incapacitate or disqualify a Judge to try a case,
unless the Constitution or statute so provides”-(vide American
Jurisprudence, Vol. 30, page 774, paragraph 74).
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 Taylor
v. Williams, 26 Tex. 583 (1863), the Supreme Court of Texas acknowledged
that a judge was not, “by the common law, disqualified from sitting in a cause
in which he had been of counsel” and concluded “that the fact that the
presiding judge had been of counsel in the case did not necessarily render him
interested in it.” Id., at 585-586. A fortiori, the Texas Court held, a judge
was not “interested” in a case “merely from his having been of counsel in
another cause involving the same title.” Id., at 586 (emphasis added); see also
The Richmond, 9 F. 863, 864 (CCED La. 1881) (“The decisions, so far as I have
been able to find, are unanimous that ‘of counsel’ means ‘of counsel for a
party in that cause and in that controversy,’ and if either the cause or
controversy is not identical the disqualification does not exist”); Wolfe v.
Hines, 93 Ga. 329, 20 S. E. 322 (1894) (same); Cleghorn v. Cleghorn,
66 Cal. 309, 5 P. 516 (1885) (same).”
11. However, a little deviation in
the principle with respect to district Courts is found in our jurisdiction in
the sense that a Magistrate cannot sit to hear the case if he had practiced as
a pleader in the Court of Magistrate in such district as mentioned in following
section of, Cr.P.C.:
557. Practicing pleader not to sit as
Magistrate in certain Courts: No pleader who practices in the Court of any
Magistrate in a district, shall sit as a Magistrate in such Court or in any
Court within the jurisdiction to such Court.
As a result,
thereof he can recuse from the case.
12. Adversaries in a criminal prosecution, no doubt, are the
private parties but State as an important and impartial pillar in between two
through the institution of Public Prosecution, is expected to ensure fair
trial, due process and equal opportunities to both parties so as to fade out
the impression of bias in the mind of a judge against any party. As per para
4.17 of Code of Conduct for Prosecutors issued under Section 17 of the Punjab
Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 it
is the duty of a prosecutor that in accordance with the law or the requirements
of fair trial, he shall seek to ensure that all necessary and reasonable
enquiries are made and the responses taken into account while taking
prosecutorial decisions.
13. In
the light of above discussion, it was observed that learned counsel for the
petitioner has not pointed out any material through which it could be inferred
that learned Magistrate is personally interested in the case or is biased
towards the petitioner in any manner. Allegation of bribery was also not made
expressly nor advocated vigorously; so much so, it was conceded that trial is
at initial stage, therefore, mere on the basis that magistrate is the caste
fellow of counsel for the complainant and is conducting trial expeditiously,
alleged biasness cannot be anticipated at this stage of the proceedings;
therefore, this petition merits outright dismissal which is dismissed
accordingly with no orders as to the costs.
(A.A.K.) Petition dismissed