IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Criminal Transfer Application No.S-53 of 2020

Muharram Ali Gadahi and others

v/s.

The State and another

          Mr. Sajid Hussain Mahesar, Advocate for the Applicants.

Mr. Muhammad Sharif R. Awan, Advocate for the complainant.

Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Date of hearing:     02.11.2020

Date of Order:       02.11.2020

~~~~

O R D E R

Naimatullah Phulpoto, J.: Through this Transfer Application under section 526 Cr.P.C., applicant-accused Muharram Ali and others seek transfer of Sessions Case No.133 of 2010, pending before learned Additional Sessions Judge-I, Dadu for offence under section 302 P.P.C.

2.       Notice of this application was issued to the learned Additional Prosecutor General as well as complainant and comments were called for from the learned trial Judge. 

3.       Learned advocate for the applicant-accused mainly contended that the applicants in the same case were convicted by Mr. Qazi Shah Muhammad Azhar, Additional Sessions Judge-I (MCTC), Dadu vide Judgment dated 29.05.2019 for offence under section 302 P.P.C and appeal was preferred. This Court while deciding the appeal vide Order dated 07.09.2020 by consent set aside the impugned judgment with direction to the trial Court to examine D.Ws Sojhro Khoso and Ghulam Nabi Khoso, then to pass fresh judgment in accordance with law. It is further submitted that learned trial Judge will again convict the applicants as he has made up his mind.  It is argued that there are rumors that complainant has approached the Presiding Officer for the conviction of the accused.  Lastly it is contended that in above circumstances applicants don’t expect justice from Presiding Officer and prayed for transfer of the case to some other Court having jurisdiction in the matter.

4.       Learned Additional Prosecutor General assisted by learned advocate for the complainant opposed the transfer application mainly on the ground that apprehension of the applicants is based upon speculation.

5.       After hearing learned counsel for the parties, I have perused the comments filed by learned trial Judge.  The allegations leveled against him have been specifically denied and it is stated that the allegations in para-4 of the transfer applications are false, frivolous and baseless. 

6.       It is the matter of record that the applicants Muharram Ali and others were convicted by learned trial Judge vide Judgment dated 29.05.2019 for offence under section 302 P.P.C and sentenced to imprisonment for life.  After remand of the case in Criminal Appeal No.S-32 of 2019, it is being heard by the same Presiding Officer.  In para-4 of the comments, it is mentioned that case was received by the learned trial Judge at the stage of pronouncement of the judgment.  Learned trial Judge has explained the proceedings before him and apprehension of the applicants that again they will be convicted by the trial Judge is based upon speculation and without any material.  The trial Judge has already been directed by this Court at the time of remand of the case to record the evidence of the defence witnesses and decide the case in accordance with law.  Even otherwise, present case cannot be transferred without strong reasons, mere on speculations. Applicants/accused cannot be allowed to pick and choose the Court of their choice.  This Court in the case of Altaf Hussain v/s. The State and another (PLD 2014 Sindh 287) has observed as under:

“6.      Before parting with this case, it may be observed that in case a transfer application containing allegations against the presiding Judge is allowed, it would impliedly mean that such allegations against the presiding Judge have been deemed to be correct.  Such a situation would certainly lower the image, dignity and honour of judiciary in the eyes of public at large.  It is only because of this reason that withdrawal or transfer of a case from the court proceeding therewith, is allowed only in exceptional circumstances where the grounds urged in support of withdrawal or transfer are supported by strong cogent reasons and evidence.  If such practice is not followed strictly, the parties are likely to take undue advantage by filing applications for transfer of their cases on flimsy, frivolous and baseless grounds.  While considering a transfer application, it must be kept in mind that the parties should not be allowed to pick and choose the court of their own choice or liking.”

7.       For the above stated reasons, transfer application is without merits, the same is dismissed.  Learned trial Judge is directed to decide the case strictly in accordance with law.

Judge

Manzoor