1988 P Cr (PLP)

Usman Ghani Rashid for Applicant. A.Q. Halepota, Mohammad Ali Shaikh and Nasim Haider for Respondents. A.R. Kazi, Addl. A.‑G. for the State. This application under section 526, Cr.P.C. has been filed by one Malik Wazir Mohammad whose brother is alleged to have met his death at the hands of the respondents Nos. 1 to

43. An F.I.R. in this connection was lodged by Inspector Maznoor Ali Wagan at Police Station Moro, District Nawabshah and after investigation of the case, the respondents were indicated for committing offences under various sections of the Pakistan Penal Code, including sections 302, 307, 395 and 397 and their trial is now proceedings before the learned Sessions Judge, Nawabshah. The applicant now requests that the case pending before the learned Sessions Judge may be transferred from his Court to this Court on its original side as according to him a fair and impartial trial cannot be had before the learned Sessions Judge, Nawabshah. The reasons for this as stated by the applicant are that, the respondent No.1, namely Ghulam Murtaza Jatoi, besides himself being an influential politician and a Zamindar, is son of Mr. Ghulam Mustafa Jatoi, a renowned politician and Zamindar of Nawabshah Distract. This, according to the applicant, is supported by the fact that bail has been granted by the learned trial Court to all the forty‑three respondents in the case. Further grievance of the applicant is that, due to family connections with the respondent No.l, and his father, the District Public Prosecutor, Nawabshah, refused to conduct the case against the applicant on behalf of the State with the result that a special prosecutor was proposed to be appointed for the purpose but Mr. Ghulam Qadir Ansari whose name was proposed in this behalf declined to accept the appointment. The contention, therefore, is that no Advocate of any significance is prepared to conduct the case on behalf of the prosecution and the witnesses, are also being pressurised. Exception has also been taken to the fact that a large number of people assemble in the Court premises in support of the respondents, which according to the applicant, has resulted in creation of awesome and tense atmosphere. Support has been sought by the learned counselfromthe following cases: ‑ Malik Asad Khan v. The State 1969 P Cr: L J 1058; Mohammad Nawaz v. Ghulam Qadir P L D 1973 SC 327; Munawar Ali Khan v. Najam Abbas P L D 1979 Lah. 346; Shamsuddin v. The State 1968 P Cr. L J 1675 and Muhammad Khan v. The State P L D 1962 (W.P.) Kar.

864. I have heard Mr. Usman Ghani Rashid, learned counsel for the applicant and Mr. A.Q. Halepota, Mr. Mohammad 'Ali Shaikh and Mr. Nasim Haider learned counsel for the respondents and Mr. A.R. Qazi, learned Additional Advocate‑General who have appeared on pre‑admission notice. Parawise comments were also called for 'from the learned Sessions Judge which have been perused by me. However, none of the contentions raised on behalf of the applicant has impressed me. No doubt, it has been alleged that Mr. G6ulam Mustafa Jatoi and the respondent No. 1 are politicians and Zamindars of some significance in the Nawabshah District, but this in itself is not sufficient to cause apprehension in the mind of the applicant that fair and impartial trial of the respondents cannot be had. No allegations have been made that Mr. Ghulam Mustafa Jatoi or any of the respondents have tried to influence the minds of the learned Judge or the witnesses in the case. Although there are allegations that bail has been granted to all the respondents in the case by the learned Sessions Judge, but it may be pointed out that even if the learned Sessions Judge had gone out of his way to grant bail to the accused in the case, the applicant could have filed an application for cancellation of the same. Needless to say, that mere passing of an erroneous order by the lower Court cannot form a ground for transfer of the case from that Court as an aggrieved party can always have resort to other remedies provided under the law. The next allegation in regard to Mr. Ghulam Qadir Ansari declining the offer to act as Special Prosecutor in the case, also appears to be of little avail to the applicant as according to the parawise comments received from the learned Sessions Judge, such offer was declined by him purely on health grounds. No such allegation has been made that Nawabshah District is running short of able prosecutors. According to the learned Sessions Judge, the trial is now being conducted by Mr. Rasool Bux Zardari, A.P.P. and nothing has been imputed to doubt his competence as a prosecutor. The apprehension of the applicant that no Advocate of significance would be conducting the prosecution in the case, therefore, does not appear to be well‑founded. The next ground taken by the applicant to the effect that a large number of people assemble in the Court premises to overawe the witnesses also does not appear to be of much significance as there are forty‑three 8ccused in the case and it is not unusual that their supporters should attend the Court proceedings, many of whom may be attending the proceedings merely out of curiosity. However, according to the learned Sessions Judge, almost all the witnesses in the case are police officials and no complaint was ever made by the complainant party` about the, witnesses being influenced by any one in the case. Consequently, there appears to be no force in the argument. Turning to the cases cited by Mr. Usman Ghani Rashid, in the first case which was a murder, case, the victim of the murder was Malik Ameer Mohammad Khan, the Ex‑Governor of West Pakistan and on account of undue publicity received ' by the case, it was found that the local atmosphere was net congenial to the trial of the case before the Sessions Court and consequently the case was transferred to the High Court. In the case of Mohammad Nawaz, in view of the personalities involved in the case and the nature of allegations, the case was ordered to be transferred by the Supreme Court from the Court of Local Magistrate to the then High Court of Sind and Baluchistan. It may be pointed out that in this case the complainant in the case was a Kamdar of Air Marshal (Rtd.) M. Asghar Khan and the tug‑of‑war' related to his property which had been seized by the local secretary of the Pakistan Peoples's Party which was then in power. In the next case reported as Munawar Ali Khan v. Najam Abbas, the atmosphere at the place of occurrence and the trial was found to be most unsafe` and uncongenial and as the two parties involved in the case wielded considerable influence in the area and, therefore, the case was found fit to be transferred from one district to another. Similarly, in Shamsuddin v. The State, the case was transferred from Karachi to Lahore as the atmosphere at Karachi was found to be tense and life of the accused was also found to be in danger. In Mohammad Khan's case, which is the last case cited by Mr. Usman Ghani Rashid, the Court once again decided in favour of transferring the case from one district to another, keeping in view the safety of the accused and convenience of the parties, The object behind giving the thumb nail summaries of the above cases is not to bring to the fore all their salient aspects, but to show that the facts of the present case are distinguishable. However, for the reasons indicated above, I find no force in this application and as such it is dismissed in limine. S.G.D.YW‑10/K???????????????????????????????????????????????????????????????????? Application dismissed.