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
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
3.
Mirza Mubarak Ahmed Nusrat v. The
State and another
1990 P.Cr.LJ
1097
4. Haji Khawar
Saleem v. The State 2001 SCMR 905.
5.
Saifullah and 3 others v. The State
2002 YLR 3661
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
2. Ashiq v. The
State NLR 1991 Criminal 727.
3.
Muhammad Munir v. The State 2001
P.Cr.LJ
1650
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
“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.