ORDER
SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cons.
Petition No.D-4738 of 2015
______________________________________________________________________ DATE ORDER WITH SIGNATURE
OF JUDGE ______________________________________________________________________
1.
For order on CMA 13296/15(U/A)
2.
For order on CMA 13297/15(Exemp)
3.
For Katcha Peshi.
4.
For order on CMA 13298/15(Stay)
Date of hearing: 22.12.2015
Mr.Ubedullah K.Ghoto
Advocate for petitioner.
Mr.
Shahriyar Imdad Awan A.A.G
-------------
Through instant
petition, the petitioner has impugned order dated 15.12.2015 passed by learned
2nd Additional Sessions Judge Ghotki
whereby the application filed by petitioner seeking transfer of Sessions Case
No.395/2004 emanating from crime No.224/2004 of P.S Daharki
under sections 302, 324, 34 PPC, from the Court of 2nd Additional
Sessions Judge Ghotki, to Anti-Terrorism Court Sukkurt has been dismissed.
Learned counsel for the
petitioner submits that keeping in view the nature of the offence, the case was
required to be tried by Anti-Terrorism Court whereas learned Additional
sessions Judge Ghotki was not justified to decline
such request of petitioner through impugned order. It has been prayed by the
learned counsel that Sessions case No.395/2004 may be directed to be
transferred to Anti-Terrorsim Court Sukkur and the
proceedings before 2nd Additional Sessions Judge Ghotki
may be stopped.
We have heard learned
counsel for petitioner and perused the record as well as the impugned order
dated 15.12.2015 passed by learned 2nd Additional Sessions Judge Ghotki in the instant case. It will be advantageous to
re-produce hereunder the relevant finding of the impugned order passed by the
learned 2nd Additional Sessions Judge Ghotki,
which reads as follows:-
“ Through
this application learned counsel for legal heirs of deceased Mahzher Ali Shah has sought for sending the case to
Anti-Terrorism Court, Sukkur for trial as according to law this Court has got
no jurisdiction to try the same. Notice of the same has been given to accused
as well as State.
Arguments
heard. Record perused.
A careful perusal of record
shows that F.I.R of the incident was registered on 19.10.2004. the case was challaned on
19.11.2004. Further perusal of case file shows that co-accused Abdul Qayoom was tried and acquittal by the Court of learned
Additional Sessions Judge, Ubauro vide Judgment dated
26.2.2013 in earlier round of litigation against co-accused Abdul Qayoom neither complainant nor legal heirs of the deceased
Syed Mazher Ali Shah or the State counsel have
challenged the jurisdiction of the Court. But at this belated stage when a
formal charge against accused Abdul Shakoor and Abdul
Malik has been framed and evidence of some witnesses has been recorded, the
instant application has been filed, which appears to be meritless and is hereby
dismissed.”
Perusal of record and
the impugned order reflects that the alleged incident took place in the year
2004 pursuant to which
F.I.R No.224/2004 was registered on 19.10.2004 whereafter, the case was challaned on 19.11.2004 before learned Sessions Court. It
further appears that the co-accused in the aforesaid crime namely, Abdul Qayoom, was tried by the learned Additional Sessions Court Ubauro and has been acquitted vide Judgment dated 26.2.2013
however, the complainant/legal heirs of deceased and state did not file any
appeal against such order. Thereafter the matter against co-accused persons has
proceeded before the learned trial Court, and evidence has been recorded,
however, neither any objection was raised by complainant party with regard to
jurisdiction of learned trial Court to proceed with the case, nor any
application in this regard was made by complainant or the State to transfer the
matter from the Court of Sessions to the Anti-Terrorism Court, during all these
years. No reasonable
explanation has been given by the learned counsel for the petitioner which may
justify filing of application seeking transfer of the case to Anti-Terrorism
Court at this belated stage, when the trial is about to conclude whereas, no
material has been brought on record which may otherwise support the contention
of learned counsel for the petitioner for seeking transfer of case from
Sessions Court to Anti-Terrorism Court.
In view of hereinabove
facts and circumstances of the case, we do not find any substance in the
instant petition, which is misconceived and devoid of any merits. Accordingly,
instant petition was dismissed in limine vide our short order dated 22.12.2015
and above are reasons of such short order.
J U D G E
J U D G E
Irfan/PA