ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr.Rev.Appln. No.S- 116 of 2009                              

DATE         ORDER WITH SIGNATURE OF JUDGE

1. For orders on MA 3425/09.

2. For Katcha Peshi.

Date of hearing:            09.4.2010.

Date of order:

Mr. Muhammad Shafi Kashmeri, Advocate for applicant.

Syed Meeral Shah, D.P.G.

Private respondents present in person.

                                                            =

                        Through instant Criminal Revision Application U/s 439-A Cr.P.C, the applicant has impugned the order dated 16.9.2009 passed by learned Sessions Judge, Hyderabad in Criminal Transfer Application No.66/2009, whereby the learned Sessions Judge has dismissed the transfer application seeking transfer of the case U/s 528 Cr.P.C from the Court of Civil Judge & Judicial Magistrate-II Tando Allahyar to Civil Judge & Judicial Magistrate-I, Tando Allahyar.

                        The learned counsel has argued that the applicant has apprehension that the learned Civil Judge & Judicial Magistrate-II Tando Allahyar will support the respondents as he has already made out his mind whereby the complaint filed by the applicant U/s 494 PPC before the said Judge was dismissed which was assailed by filing of Revision Application before the learned VIII Additional Sessions Judge, Hyderabad and the matter was remanded back for further proceedings.

                        Conversely, the learned DPG supports the impugned order and states that transfer application which was based on false and frivolous grounds has rightly been rejected by the learned Sessions Judge and the said order requires no intereference.

                        I have heard both the learned counsel and perused the record.

                        The solitary ground raised in the transfer application and argued before this Court by counsel for the applicant appears to be that since the learned Civil Judge & Judicial Magistrate-II Tando Allahyar has once dismissed the complaint of the applicant U/s 494 PPC which was assailed in the Revision and the matter was remanded back to the same Judge for fresh decision, hence there is no likelihood of fair decision by the said Judge. This solitary ground in the absence of other allegations and material, seeking transfer of the case from one Judge to another Judge in terms of Section 528 Cr.P.C appears to be fallacious and misconceived. If such ground is allowed to be considered for the purpose of seeking transfer of the case from one Court to another Court then every case in which remand order is passed by the Appellate Courts, such application would be justified on the behest of either party which is not the mandate of law as visualized in terms of Section 528 Cr.P.C. Under the circumstances and in view of the facts of this case, the impugned order passed by learned Sessions Judge Hyderabad does not suffer from any illegality and has been passed by exercising proper discretionary jurisdiction in terms of Section 528 Cr.P.C, hence requires no interference by this Court. In view of hereinabove, the instant Criminal Revision Application which is without merits was accordingly dismissed on 9.4.2010 by short order and these are the reasons of such order.

                        However, the learned trial Court is directed to proceed with the matter strictly in accordance with law on the basis of evidence available on record without being prejudiced by the fact of filing of transfer application by the applicant.      

                                                                                                            JUDGE

Tufail