2011 PLP 1493 (YLR)

MUHAMMAD TASNIM, J.--Through this Criminal Transfer Application under section 526, Cr.P.C, the present applicant has prayed for transfer of Sessions Case No. 552 of 2009 State v. Munawar and others, from the Court of 2nd Additional Sessions Judge, Khairpur to Judicial District, Sukkur on the sole ground that there is imminent threat to the life and danger to the Complainant and his witnesses. Learned Counsel for the complainant submits that, present applicant has, due to fear and threat to his life and to his witnesses, already shifted to Sukkur. He further says that due to aforesaid reason, witnesses could not be produced in the Court, where the Case is pending. Learned counsel, in support of his present Transfer Application, has placed reliance upon case of Mubarak Ali v. The State (1989 PCr.LJ 150). On the other hand, learned Counsel for the accused has vehemently opposed the Transfer Application by contending that no date, place and time of threats allegedly extended by the accused to the complainant Party has been mentioned in the Transfer application. Learned Counsel has further argued that allegations are general in nature. He further contends that matter has neither been reported to the Police nor any application has been made to the Trial Court complaining about threats being extended by the Accused party to the complainant party. He further says that no material whatsoever has been brought on record to substantiate the fact that present applicant has practically shifted from Khairpur to Sukkur. Learned counsel has invited my attention to the title of the application, wherein the address of applicant has been shown in District Khairpur. He has further invited my attention to the Affidavit filed by the applicant in support of the Transfer Application, which also shows the address of Khairpur. Learned counsel says that the present Transfer Application is not maintainable for the aforesaid reasons and has placed reliance on the cases of Noor Ahmed v. The State (2009 MLD 22), an unreported Order of learned Single Judge of this Court, dated 14-05-2010 passed in Cr.Tr.A. No.9 of 2009, (Arbab Ali and others v. The State), and on the case of Gul Muhammad and 4 others v. Zawar Hussain, (2000 PCr.LJ 1217). Learned A.P.-G. has also vehemently opposed the present Transfer Application and has submitted that it is settled law that preference to the accused party and the defence witnesses is to be given over the preference of complainant and his witnesses while passing the order on Transfer Application. He has placed reliance upon the case of Jamil Ahmed v. Azam and 2 others (1988 PCr.LJ 841). I have heard the learned counsel for the parties and have gone through the record. From the perusal of record, it reveals that present applicant has not brought on record any material that he has practically shifted from Khairpur to Sukkur except for one mention in the body of Transfer Application to the effect that "the applicant shifted from his village and presently residing to village Khanan Buriro and due to fear of life, the applicant and his witnesses are not attending the Trial Court at Khairpur." Apart front above, no material has been placed on record. It is admitted position on record that no specific allegation mentioning the date, time and place of extending threats by the accused party to the complainant or his witnesses has been mentioned in the application. It is also admitted position that no report to the Police or any application to the trial Court was made complaining about the threats being extended by the accused party to the Complainant or his witnesses. The order cited by the learned counsel for the applicant does not support his case for two reasons. Firstly, the order relied upon by the learned counsel is a consent order. Secondly, the order cited by him is distinguishable on facts, which does not help the learned counsel for the applicant. On the other hand, the judgments cited by the learned counsel for the accused fully apply to the present case; as in the case of Noor Ahmed (supra), learned Single Judge of this Court has observed as under:-- "From face of record and grounds disclosed in the transfer application, no particular incident, date or time has been disclosed, nor applicant has alleged that any Miscellaneous Application even was moved by him or by the co-accused with any forum or authority including Police, for the purpose of protection etc. Even name of particular person has not been disclosed, who issued threats of dire consequences, nor version of the applicants has been supported by anybody nor produced a copy of application, from which prima facie appears that, he received threats and have a reason or ground for moving the transfer application and there is only word against word. The case referred by learned counsel for the applicant is distinguishable, having different facts and circumstances and not similar and identical to the present matter whereas law referred by learned Additional A.G is so relevant, having mostly same facts based on identical circumstances." Similarly, while dealing with the Transfer Application in the case of Ghulam Muhammad and 4 others, learned Single Judge of this Court has dismissed the same on the ground that no specific date, time and place was mentioned in the application. In the case cited by learned A.P.-G., in support of his contention. learned Chief Justice of this Court, as he then was, while dealing with the Transfer Application, has observed as under:-- "I, therefore, hold that while considering the question of transfer of case, convenience of the accused and/or his witnesses can be given preference over the convenience of the complainant and/or his witnesses unless there are some added factors which when taken into consideration could tilt the weight in favour of .the complainant." From the perusal of the record and the above case law cited by the parties, I am of the considered view that no ground for transfer of case from one District to other District has been made out. This application is accordingly dismissed. However, since the apprehension has been shown by complainant that due to fear, complainant and his witnesses are not approaching the Trial Court at Khairpur. The S.H.O. concerned is directed to provide protection to the complainant and his witnesses as and when they approach the relevant Police Station for protection and appearance before the trial Court. H.B.T./G-34/K Application dismissed.