ORDER
SHEET
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl.
Transfer Application No.D-160 of 2016.
|
DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE. |
Present:
Mr. Justice Hasan Azhar Rizvi
&
Mr. Justice Muhammad Humayon Khan.
Mr.
Nizamuddin Baloch advocate for Applicants/accused.
Mr.
Saleem Akhtar Buriro, Additional P.G. for the State.
Date of hearing: 10-01-2017.
O R D E R
Muhammad
Humayon Khan J., This
Crl. Transfer Application is filed for transfer of special case No. 24 of 2012
re: State-versus Muhammad Ismail Shaikh and others from the court of learned
Judge, ATC Khairpur to any other competent court having jurisdiction.
2. The
relevant facts of the case in nutshell for the disposal of this Crl. Transfer
Application are that complainant SIP Ghulam Abbas Shar, SHO, P.S.Lakha Road
lodged FIR on behalf of State bearing Crime No. 05 of 2012 at P.S. Sadiq
Kalhoro-Khairpur on 22.02.2012 at 1500 hours against applicants and others, for
offences under sections 302,364, 324, 353, 404, 120-B & 109 PPC in respect
of an incident alleged to have taken place on 20.02.2012 at 1730 hours. After usual
investigation the challan was submitted before the learned Judge, ATC,
Khairpur, where the applicants and other accused are facing trial. Record
reflects that after framing of charge, trial commenced and prosecution led
evidence of all the prosecution witnesses. Now after recording of statements of
accused, the case is fixed for pronouncement of judgment.
3. We have heard learned counsel for the applicants
as well as learned Additional P.G. and perused the record meticulously.
4. The
learned counsel for the applicants contended that the learned trial Judge during
cross-examination put answers in the mouth of the prosecution witnesses, which
shows bias on his part. He further submitted that the behavior of the learned
trial Judge with the applicants is harsh during the proceedings and hence the
applicants have no hope of justice and fair disposal of the case. He further
stated that the applicants have lost their confidence. He finally submitted
that if the matter is proceeded, the rights of the applicants shall highly be
prejudiced and therefore it is a fit case for transfer. However, the learned counsel
for the applicants has not cited any case law in support of his arguments.
5. Learned
Additional P.G. vehemently opposed the instant transfer application on the
ground that after conclusion of trial by the trial court the case is now fixed
for pronouncement of judgment and at this stage, filing of instant transfer
application by the applicants would tantamount to prolong the case which is not
justified.
6. Pursuant
to orders of this court, learned trial Judge furnished comments vide letter
dated 04.01.2017 stating therein categorically that the trial has been
concluded and case is now fixed for pronouncement of judgment, as such we are
not impressed with any contention of the learned counsel for the applicants for
the simple reason that none of the contention is supported by any cogent reason
or proof and hence all the contentions are totally misconceived and contrary to
law.
7. It
is a well-established legal proposition that justice is to be done without fear
or favour, hence, the Presiding Officers are equally to be protected from
frivolous transfer applications in order to achieve the transparent even-handed
justice so that one of the litigant may not be in a position to overawe the
Presiding Officer which may ultimately result in tilting the scales of justice
under the fear of maligning, therefore, while exercising jurisdiction to
transfer of cases from the sub-ordinate Courts, a balance has to be struck in
order to ensure that the cases are not transferred merely on the basis of
suppositions, unfounded and conjectural apprehensions. Thus, merely an adverse
judicial order passed against a party, will not solely be a sufficient ground
for transfer of the case as the aggrieved person has a remedy to challenge the order
before a higher forum. Our this view finds support from the cases of (i) Sameer Ehsanullah Makhzan and 3 others
vs. Muhammad Asif Zaman and 3 others (PLD 1993 Lahore 554) and (ii) Mian Muhammad Rafiq Saigol Vs. BCCI and
others (1996 CLC (Lahore) 1390).
8. No
other substantial ground or material has been brought on record on the basis
whereof, it could be said that the learned trial Judge is either prejudiced or
biased against the applicants, which may justify the transfer of the case.
9.
In view of the above
discussion, this Crl. Transfer Application is dismissed in limine.
10. Before
parting with this order, it is necessary to give direction to the learned
Judge, ATC, Khairpur to decide the case within a month in accordance with law
and compliance report should be submitted to this court through Additional
Registrar.
JUDGE
JUDGE