Cr.Transfer A. No. S-  28 of  2012 .

 

1.      For Katcha Peshi.

2.      For hearing of M.A1787/12.

 

     

07.06.2012.

 

Mr. Zubair Ahmed Rajput Adv. for applicant.

Mr. Noor Hassan Malik for complainant.

Mr. S. Sardar Ali Shah APG.

                  **********

 

Naimatullah Phulpoto J;     By this transfer application applicant/accused Liqat Ali has sought transfer of Sessions Case No. 71/2007 Re. State v. Liaqat Ali & others U/s 302,337H(ii),34 PPC pending in the Court of Additional Sessions Judge, Gambat to any other Court of District Khairpur. Notice of this application was issued to the complainant as well as DPG.

 

         I have carefully heard Mr. Zubair Ahmed Rajput learned counsel for the applicant Liaqat Ali and Mr. Syed Sardar Ali Shah learned APG assisted by learned counsel for complainant and perused the comments, other material placed on record and case law.

 

         Mr. Zubair Ahmed Rajput learned counsel for the applicant/accused has mainly contended that learned trial Judge Gambat had dis-allowed important questions during the cross examination of the prosecution witnesses put by him to the prosecution witnesses, which were very much essential for just decision of the case.

 

            It is further contended that learned trial Judge recorded evidence according to his own version and thereby caused serious prejudice to applicant/accused Liaqat Ali, therefore, he apprehends injustice at the hands of learned Additional Sessions Judge, Gambat. Learned counsel for applicant/accused has questioned the manner in which proceedings are conducted by the trial Court. In support of his contentions learned counsel for the applicant relied upon following cases;

 

1.     Bagh Ali & 4 others v. The State PLD 1973 Supreme

       Court 321.

 

2.     Muhammad Aslam v. The State 1990 P.C.LJ 205 Lahore.

3.     Mirza Mubarak Ahmed Nusrat v. The State and another

       1990 P.Cr.LJ 1097 Karachi.

4.     Haji Khawar Saleem v. The State 2001 SCMR 905.

5.     Saifullah and 3 others v. The State 2002 YLR 3661

       Karachi.

 

            Mr. S. Sardar Ali Shah Learned APG assisted by learned counsel for complainant argued that advocate for accused Liaqat Ali resorted to very lengthy cross examination. Some of his questions being irrelevant and unnecessary for just decision of the case were dis-allowed by trial Court. Learned APG argued that applicant/accused Liaqat is main accused in the case, delay is occasioned in the trial because of the conduct of accused Liaqat Ali during trial. As such the Apprehension in the mind of accused Liaqat Ali is unfounded and unreasonable. In support of his contentions reliance has been placed upon the following cases;

 

1.      Mazhar Iqbal v. The State 2005 MLD 1364 Lahore.

2.     Ashiq v. The State NLR 1991 Criminal 727.

3.     Muhammad Munir v. The State 2001 P.Cr.LJ

       1650 Karachi.

 

4.    Mehboob Ali and another v. The State 2004 SCMR 261.

 

 

5.    Muhammad Malik v. Muhammad Farooq and 2 others

      1993 P.Cr.LJ 1362.

 

            Learned trial Judge, Gambat in his comments has denied all the allegations and stated that irrelevant questions were not allowed by him, though every question put-up by defence counsel which was found relevant, was properly written and decided. 95 adjournments were sought by defence counsel and delay has been caused in the recording of evidence due to the adjournments sought by defence counsel.

 

           In the case of Muhammad Munir v. The State 2001 P.Cr.L.J 1650 Karachi this Court has observed as under:-

                                   

       The perusal of the above comments shows that the learned counsel for the applicant/accused, put irrelevant question to the prosecution witnesses, therefore, the same were not allowed. It is the duty of the Judge under law to decide about the relevancy, irrelevancy, admissibility or inadmissibility of the questions put to the witness. The object of the cross-examination is to elucidate the truth. The Presiding Officer of the Court has to ensure that the witness is not heckled or harassed by way of any irrelevant question. The, witness is as respectable as any other person until and unless it is proved otherwise. Both sides of the scale are to be kept equal and not to be tilted on either side. It is well-settled that mere apprehension in the mind of a party that he will not get justice at the hands of Presiding Officer of the Court is no ground for transfer of the case. The apprehension must be reasonable. The reasonableness is to be decided looking towards the peculiar facts and circumstances of each case. Merely because certain irrelevant questions were put to the witness and disallowed by the trial Judge, it would not furnish sufficient ground for the transfer of case.

 

 

            From the perusal of the comments filed by Additional Sessions Judge, Gambat it is very much clear that irrelevant question put to the prosecution witness were not allowed. It is the duty of the learned trial Judge under the law to decide about the relevancy, irrelevancy, admissibility or inadmissibility of the questions put to the prosecution witnesses at the time of recording of evidence. It is settled principle of law that purpose of cross examination of the prosecution witnesses is to elucidate the truth for just decision of the case. Learned counsel for applicant/accused while arguing this transfer application, did not level allegation of bias in the mind of Presiding Officer and the manner in which proceedings are being conducted by him nothing objectionable has also been pointed out. Both sides of the scale have been kept equal by the learned trial Judge. It is settled position of the law that mere apprehension in the mind of the party would not be sufficient for transfer of the case from one Court to other. Apprehension in the mind of party must be reasonable and based upon some sound reasons. Merely some irrelevant questions put to the prosecution witnesses were dis-allowed by learned Judge would not furnish sufficient ground for transfer of the case, particularly in the circumstances when 95 adjournments applications have been frequently granted by the learned trial Judge. Delay in recording of evidence in this case appears to be shocking one.

 

          For the foregoing reasons, this transfer application is dismissed with directions to trial Court to decide the case expeditiously under intimation to this Court.

 

                                                 JUDGE

 

 

Ihsan.