ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Transfer App. No. S – 90 of 2020

Date of hearing: 09-08-2021

Date of order: 09-08-2021

Mr. Muhammad Junaid Akram Malik, Advocate for the applicants in Criminal Transfer Application No. S-90 of 2020.

Mr. Abdul Sattar N. Soomro, Advocate for legal heir of respondent No.1 in Criminal Transfer Application No. S-90 of 2020.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

.-.-.-.-.-.-.-.-.-.-.

O R D E R

Muhammad Junaid Ghaffar, J. – This Criminal Transfer Application has been filed by the applicants being aggrieved of the order dated 11-02-2020, through which the third transfer application filed by Hazoor Ali (complainant of FIR No. 79 of 2017) before the Sessions Judge, Sukkur was dismissed.

2. Learned Counsel for the applicants submits that two FIRs bearing No. 79 and 80 of 2017 of Police Station Kandhra were registered in respect of the same incident; one by the applicants and the other by the respondent; that earlier complainant-Hazoor Ali filed Criminal Transfer Application No. 23 of 2019, which was allowed by the Sessions Judge, Sukkur vide order dated 15‑05-2019; that thereafter, due to some administrative orders, both cases were assigned to two different Courts; hence, another application bearing No. 77 of 2019 for transfer was filed, which was also allowed vide order dated 10‑01-2020 by the Sessions Judge, Sukkur; that again through some administrative orders, both cases were separated and being still aggrieved, complainant-Hazoor Ali filed third application bearing No. 09 of 2020, which has been dismissed vide order dated 11-02-2020 by the Sessions Judge, Sukkur; that time and again, after granting the transfer application, the cases have been separated merely on some administrative orders and also on the ground that the Model Courts can only hear murder and narcotics cases; that the learned Sessions Judge has failed to appreciate the facts of the case and the earlier orders passed on the transfer applications; hence, applicants Counsel has prayed for granting the application as prayed.

3. On the other hand, respondent’s Counsel has opposed this application on the ground that earlier when transfer applications were granted, the respondent was not properly assisted and as of today, according to him, both these cases are not in respect of the same incident; hence, the application does not merit any consideration and is liable to be dismissed.

4. I have heard both learned Counsel and perused the record.

5. Insofar as the respondent’s case is concerned, it is an admitted position that the respondent was neither aggrieved, either by the first order of transfer dated 15-05-2019 or for that matter with the second order dated 10-01-2020, through which the request of the complainant-Hazoor Ali for transfer of both these cases before one Court was allowed. I have confronted the respondent’s Counsel on this as to how and on what grounds the respondent now intends to oppose such request when earlier it was not opposes rather conceded and to this he has argued that he has been engaged recently and the respondent was not properly advised earlier. On the face of it, such argument is misconceived and cannot be looked into by this Court. Mere change of Counsel does not change the entire stance of a litigant, more so when the order of a Court having jurisdiction has been accepted and not agitated any further. Once an order for transfer of a case to the other Court was allowed by placing both cases before the same Court, then respondent cannot alter its stance merely due to change of Counsel, nor can dispute and agitate any further request of transfer on this ground that now a proper advice has been given.

Though perusal of the record reflects that insofar as the two transfer orders as above are concerned, they were not passed on applicant’s request; but on the application of Hazoor Ali (complainant of FIR No. 79 of 2017); however, it does not affect the present request of the Applicants as still the cases are to be decided together considering the facts as above. Notwithstanding this, the record reflects that after granting the two transfer applications and placing both these cases before one trial Court, the administrative staff of the District & Sessions Court has again placed both these cases before different Courts for reasons which are not applicable to the applicants’ case. Once a District & Sessions Judge duly empowered to transfer a case has exercised his powers and has passed an order by placing the case before one trial Court, then such cases ought not; rather must not again be dealt with by routine administrative orders of transfers by placing the same before separate Courts. Another reason which has been assigned in the impugned order is that Model Courts can only hear murder and narcotics cases and, therefore, both these matters cannot be placed before the same Court. In my view, this stance is also not appreciable inasmuch as in that case, the learned District & Sessions Judge ought to have placed both the case before any another Court, other than the Model Court; however, cannot in any manner, deviate from the earlier orders already passed for transfer of the cases and against which the respondent had not preferred any further challenge. This is the best way to administer proper justice in a timely manner and to decide proceedings expeditiously.

6. In view of hereinabove facts and circumstances of the case and the fact that earlier, two transfer applications already stand allowed without any objection by the present respondent, this application merits consideration and is hereby allowed. The learned District & Sessions Judge, Sukkur is directed to place both these cases i.e. arising out of FIR Nos.79 and 80 of 2017 before one single Court having jurisdiction to try offences in question (other than a Model Court) who is further directed to proceed with both the matters in accordance with law expeditiously. With these observations, the Criminal Transfer Application is allowed, in the above terms.

J U D G E

Abdul Basit