ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Transfer Application No. S-55 of 2020

 

 

            Applicant/Complainant       : Zahid Hussain Pirzado and another

                                                            Through Mr. Achar Khan Gabole, Advocate

 

 

Respondent              :           The State

Through Mr. Aftab Ahmed Shar, APG

           

Date of hearing        :           20.07.2020

            Date of Order            :           20.07.2020

*****

 

O R D E R

 

ADNAN-UL-KARIM MEMON, J:              Through this application, the applicants have prayed for transfer of Bail Application No.779/2020 from the court of learned 3rd Additional Sessions Judge, Naushahro Feroze, to any other court of law.

2.         In the present matter, question arises whether this Court can order for transfer of Pre-arrest-Bail Application from one Court to another court under Section 526 Cr.P.C?

3.    To answer the aforesaid proposition, it is well settled law that any person who is aggrieved can file a petition before this Court under Section 526, Cr.P.C. if there appears reasonable apprehension of injustice being done due to the conduct of the court subordinate to the High Court. The said grievances must be agitated before this Court but should be supported by legal requirements of law. It would be advantageous to go through provisions of Section 526, Cr.P.C. which read as follows:-

         “Section 526. High Court may transfer case or itself try it.

          (1) Whenever it is made to appear to the High Court:-

          (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or (d) that an order under this section will tend to the general convenience of the parties or witnesses, or (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order: (i) that any offence be inquired into or tried by any Court not empowered under sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence.

           (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

           (iii) that any particular case or appeal be transferred to and tried before itself; or (iv) that an accused person be sent for trial to itself or to a Court of Session. (2) When the High Court withdraws for trial before itself any case from any Court [....] it shall observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.

           (3) The High Court may act either on the report of the lower Court, or the application of a party interested, or on its own initiative.

           (4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Advocate-General, be supported by affidavit or affirmation.

           (5) When an accused person makes an application under this section the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this section award by way of compensation to the person opposing the application.

           (6) Notice to Public Prosecutor of application under this section. Every accused person making any such application shall give to the Public Prosecutor notice in writing of application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application.

           (6A) When any application for the exercise of the power conferred by this section is dismissed, the High Court may if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding [five hundred rupees] as it may consider proper in the circumstances of the case.”

 

4.    At this juncture, I asked the learned counsel as to how he is prejudiced by the decision dated 24.6.2020 of learned Trial Court, granting pre-arrest bail to the Applicant/accused on the premise that if he is at all aggrieved by his decision, he can apply for cancellation of Bail in accordance with law?           5.   He replied that  the accused is a criminal type person and prior to this incident, he by force illegally dispossessed the applicant No.2 from her Medical Center and in this regard a complaint under Section 3 & 4 of Illegal Dispossession Act was filed, which is pending adjudication before learned Additional Sessions Judge-VI, Khairpur; that it is an admitted fact that there is enmity in between the parties and now the accused is threatening the applicants that if they will pursue the case against him, they will face dire consequences; that the accused person is highly influential person and there is great apprehension of murder of the applicants, if they pursue the bail application before learned Additional Sessions Judge-III, Naushahro Feroze; that in general practices, all the cases of Taluka Kandiro have used to be transferred to learned Additional Sessions Judge, Kandiaro for its disposal but in this case, a special treatment has been given to Respondent No.2 by keeping his bail application in Naushahro Feroze District instead of transfer to learned Additional Sessions Judge, Kandiaro, which creates serious apprehension in the mind of the applicants that they will not get justice from the court of learned Additional Sessions Judge, Naushahro Feroze; that there is apprehension that the Presiding Officer would not be able to act fairly and impartially in the matter; that the applicant/complainant has lost his confidence or faith over the learned Presiding officer, therefore, there is no hope that Presiding Officer would provide fair and impartial justice to the applicant/complainant. He lastly prayed for allowing the instant transfer application.

6.         Learned Assistant Prosecutor General, Sindh, at the outset, contended that there is no any reasonable ground or plausible cause has been mentioned for transfer of bail application to one Court from the others; that nowadays it is a general practice that one of the party would definitely think that he will not get justice and hurriedly believed upon the rumors raised by the defending party as the defending party just to cause harassment or pressurize the contesting party raised such kind of rumors; that at the stage of bail, it cannot be justified that the Presiding Officer will not act fairly or impartially but it is upon the Presiding Officer to decide the bail application on its own merits; that this application, being meritless, may be dismissed.

7.     I have heard learned Counsel for the Applicant and learned Assistant Prosecutor General as well and have minutely perused the material available on record.

8.         It is an admitted fact that Pre-arrest bail Application No.779 of 2020 was moved before the learned Sessions Judge Naushahro-Feroze on 19.6.2020, however the same was transferred to the court of learned (IIIRD) Additional Sessions Judge Naushahro-Feroze on administrative grounds and the applicant/accused was admitted on interim Bail vide order dated 24.6.2020 and till today the same has not yet been decided so far and the legality of the same is exclusively within the domain of the learned trial court.

9.         Record reflects that the applicant withdrew his Criminal Transfer Application, which factum is disclosed from the order dated 24.06.2020, passed by learned Sessions Judge, Naushahro-Feroze.

10.       On the issue of transfer the case from one Additional Sessions Judge to another, the learned full Bench of Lahore High court vide order dated 29.04.2019 passed in the case of  Naveed Hussain vs. the State, etc. has held as follows:

“In sequel to what has been discussed above, we are of the considered view that the learned District & Sessions Judge has no authority to transfer the case from one Additional Sessions Judge to another except entrustment of fresh cases in administrative capacity. Any subsequent transfer of the case from one court to another exclusively lies with the High Court to entertain and decide if at all compelling reasons justiciable within four corners of law are available, in the safe administration of justice.

14. The instant revision petition is allowed in the above said terms with a direction to the learned Sessions Judge, Lahore, to immediately entrust the bail application of the petitioner to the court where challan of the case already stands submitted.”

 

10.       Before parting with this order, I expect from the learned trial Court for swift disposal of the aforesaid bail application within a reasonable time. In the meanwhile, learned Sessions Judge, Naushahro-Feroze, may look into the matter and anxiety of the parties, as discussed supra, and pass an appropriate administrative order for assigning the case to any Additional Sessions Judge, District Naushahro-Feroze, after submission of final challan in accordance with law.

11.       In the light of above facts and circumstances of the case, this Criminal Transfer application is dismissed alongwith pending application(s).    

 

                                    JUDGE

Faisal Mumtaz/PS