ORDER
SHEET
IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Cr. Transfer App. No. S – 118 of
2019
Date
of hearing |
Order with
signature of Judge |
1.
For
orders on MA No. 6247/2019 (U/A)
2.
For
orders on office objection at Flag 'A'.
3.
For
orders on MA No.6061/2019 (Ex)
4.
For
hearing of main case
09.12.2019
Mr. Naeemuddin
Kasimi Advocate for applicant.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
.-.-.-.-.-.-.-.-.-.-
Through this transfer application,
applicant/complainant Dr. Mukhtiar Hussain seeks transfer of criminal case
No.157/2018 State versus Abdul Malik and others under sections 337-A(i), A(ii)
F(i),337-H(ii), 504, 147,148, 149 PPC, pending before leaned 2nd
Civil Judge /Judicial Magistrate Khairpur.
Additional P.G present in the Court
waives notice of this transfer application.
Learned advocate for applicant
/complainant mainly contended that attitude of the Presiding Officer is harsh
and Presiding Officer had dismissed an application under section 540 Cr.P.C
moved by the complainant. It is further argued that presiding officer is
pressurizing the complainant for recording the evidence. Lastly, it is
submitted that applicant /complainant has lost confidence in the trial Judge.
Mr. Zulifqar Ali Jatoi Additional
P.G argued that trial Court had been declared as Model Court and Model Courts have
been directed to decide the cases expeditiously. It is further argued that
adverse order on an application under section 540 Cr.P.C is no ground for
transfer of the case. He has opposed the transfer application.
It appears that learned Sessions
Judge Khairpur has dismissed the transfer application No.59/2019 vide order
dated 21.11.2019. Relevant para is reproduced as under :-
“ I have given due
consideration to the submissions made by the learned counsel for parties and
have gone through the relevant record made available before me. Mere passing
adverse order on application U/S 540 Cr.P.C is no ground for the transfer of
the case. So far the ground of pressurizing complainant for recording evidence
is concerned, the trial Court is acting as Model Court declared by Honourable
High Court and has to decide the case as per scheduling certificate and in that
way the trial Court has recorded the evidence, as nothing is brought on record
to show if any restraining order was passed by the appellant Court in the
revision applications; even the case diaries produced by the applicant’s
advocate do not show if at any movement applicant had brought before the trial
Court the fact of pendency of revision application. With regard to behavior of
learned Judge, the trial Court being Model Court might have insisted for
recording the evidence and it is the duty of the Court to decide the case as early
as possible as per schedule, as such, it would not be deemed to be pressurizing
the appellant / complainant. So far condonation of absence of accused is
concerned, the trial court after considering the grounds mentioned in the
application condone the absence of accused which was within its discretion. The
true copy of the application for condonation of absence of accused Abdul Qadir
dated 10.10.2019, placed on record by learned applicant’s advocate clearly
shows that on that day the said accused was busy in official meeting at
Karachi.:”
Mere
passing of adverse order on application U/S 540 Cr.P.C moved by complainant
before learned trial Judge is not a valid ground, for transfer of the case. As
regards the harsh attitude of Presiding Officer is concerned, not a single
instance has been quoted to satisfy the Court about the behavior of the learned
Judge. The allegations leveled against Presiding Officer have not been substantiated
by cogent material. As regards to the contention of counsel for the applicant /
accused that trial Court is pressing hard for recording evidence of
complainant. It may be observed that it is duty of the every Court more
particularly the Model Courts to decide the cases expeditiously. Transfer of a
case from one Court to another indirectly casts doubt on the competence and
integrity of the Judge from whom the case is sought to be transferred. Mere
presumptions or possible apprehension are not sufficient. Only good and
sufficient grounds clearly set out in transfer application may justify the
transfer of the case. The law is well settled that a litigant cannot choose a
Judge / Court of his choice. In the present Transfer Application, there is allegation
against Presiding Officer but without material / evidence. No ground for
transfer of the case is made out.
Transfer application is dismissed.
However, trial Court is directed to decide the case expeditiously. Let the copy
of order be sent to trial Court through learned Sessions Judge, Khairpur by fax
for compliance.
J U D G E
Abdul Basit