ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Transfer  Appln. No.116 of 2010.                                                                                                                                        

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

                                    1. For orders on office objection Flag ‘A’.

                                    2. For  Katcha Peshi.

17.01.2011.

Mr. Altaf Hussain Surahiyo advocate for applicant.

                        Mr. Abdul Rehman Bhutto advocate for private respondents.

                        Miss Rubina Dhamrah, State Counsel.

                                                -.-.-.-.-.-

1.                     Through this listed application the complainant has prayed for transfer of the case from the Court of learned IIIrd Additional Sessions Judge, Shikarpur to some other Additional Sessions Judge, at Shikarpur on the ground that the complainant has lost his confidence in the learned Judge. Learned counsel for the complaint has referred to judgment of the Honourable Supreme Court  in the case of Haji Khawar Saleem versus The State 2001 SCMR 905.

2.                    Learned counsel for the accused vehemently opposed the instant application on the ground that the same is false and frivolous. It has been further contended that no reasonable ground for transfer has been mentioned seeking transfer of the case which is being proceeded by the learned Judge in accordance with law, whereas the complainant is not attending the Court for recording evidence. It has been further pointed out that in spite of repeated notices and publication in newspaper dated 06.10.2010 in daily ‘Kawish’, the complainant has not come forward for recording evidence. Learned counsel further pointed out that earlier also similar application being Crl. Transfer Appln. No.S-53/2010 was moved on behalf of the complainant seeking transfer which was dismissed by this Court vide order dated 24.5.2010 and learned trial Court was further directed to conclude the trial within three months. Per learned counsel, it is  the complaint himself, who is not coming forward for recording evidence and to enable the learned trial Court to comply with the directions of this Court.

3.                     I have heard both the learned counsel and perused the record as well as case law referred and relied upon by the leaned counsel for the complainant.

             From  perusal of the contents of the transfer application, it appears that  the allegation against the learned trial Judge is that he is pressurizing the complainant and his witnesses to enter into compromise with the accused party, failing which the accused may be acquitted under section 265-K, Cr.P.C.

4.                    Comments were obtained from the learned IIIrd Additional Sessions Judge, Shikarpur, who vide his comments dated 23.11.2010, has specifically denied the allegations contained in the transfer application. It has been stated in the comments that the above case was received by way of transfer from the Court of learned 4^th Additional Sessions Judge, Shikarpur on 05.7.2010. Charge against one accused Abdul Fatah was framed on 11.2.2009 and official witness i.e. ASI Abdul Qadir Hakro and Medical Officer Dr. Tariq Qazi were examined. Thereafter on 27.10.2010, amended charge against accused Altaf and Abdul Nabi was framed by the Court and again the official witness i.e. ASI Muhammad Ratal and was examined, and the matter is pending for evidence of private witnesses. It is further intimated that earlier also, the accused persons had moved transfer application being No.S-53/2010, which was dismissed vide order dated 24.5.2010 by this Court, with the direction to the trial Court to conclude the trial within three months and to submit progress report of each and every date of hearing. It is further intimated by the learned trial Judge that in spite of repeated notices, the counsel for the complainant is seeking adjournment and not proceeding with the matter, whereas the private witnesses are not attending the Court for recording the evidence, in spite of publication having been made in daily ‘Kawish’ to procure their attendance.

5.                     It may be observed that this Court in terms of Section 526, Cr.P.C, is empowered to transfer the case from one Court to another Court or to try the same itself provided it is of the opinion that fair and impartial enquiry or trial cannot be held in criminal Court sub-ordinate thereto or where some question of unusual difficulty is likely to arise or there is  certain apprehension or danger to life to any of the party. General convenience of the parties to the proceedings  and witnesses can also be made basis for seeking transfer of a criminal case from one Court to another Court, provided, notice in writing of such application is issued to other party and to the Public Prosecutor in this regard.

6.                    However, parties cannot be allowed to move such applications in a routine manner without any substantial or reasonable grounds with on aim  to thwart  the legal proceedings pending before the competent Court of jurisdiction or to cause delay and inconvenience to either party or witnesses of the case. Mere allegation against the Presiding Officer, without any substance or supporting evidence, would not justify filing of transfer application. Courts are required to examine the facts of each and every case on merits while deciding transfer applications and to discourage the frivolous applications which are tainted with malafides or filed with an attempt to pressurize or prejudice the mind of the learned Judge of competent jurisdiction, who is otherwise proceeding with the case strictly  in accordance with law.

7.                     From the perusal of the contents of the Criminal Transfer Application and the comments filed by the learned Presiding Officer, it appears no reasonable cause or justification has been shown by the learned counsel for the applicant requiring any interference by this Court at this stage. The  case law relied upon by the learned counsel for the applicant is of no avail to him as the facts are entirely distinguishable, as in the cited case, the learned trial Court in view of the non appearance of the petitioner, and on the basis of false report of process server, called upon the petitioner to furnish bail bond in the sum of Rs.100,000/- with two sureties each in the like amount and in case of failure to do so to remain in prison and  it was under these peculiar facts and circumstances of the case, the Honourable Supreme Court was persuaded to transfer the case from the said Court to any other Court under section 526(1)(e) of Cr.P.C.

                        In view of hereinabove, instant application is devoid of any merits, the same is hereby dismissed with no order as to cost.

Judge