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.

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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 2^nd 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