P L D 2008 Supreme Court (AJ&K) 23 (PLP)

MUHAMMAD REAZ AKHTER CHAUDHRY, C J.

This revision petition is directed against the order of the learned single Judge of the Shariat Court dated 23-4-2007, whereby the application of the respondents for transfer of the case from Muzaffarabad to Rawalakot Circuit was accepted and the case was transferred to Rawalakot Circuit.

2. The brief facts giving rise to the instant revision petition, are that a case was sub judice before the Shairat Court at its principal seat Muzaffarabad. On 23-4-2007 the case was called. An application was moved on behalf of Mr. Asghar Ali Malik the learned counsel for the petitioner, for adjournment of case, as he was busy in murder cases at Rawalakot. This application was allowed. On the, same day the respondents also moved an application for transfer of the case from Muzaffarabad to Rawalakot Circuit and the case was transferred to Rawalakot Circuit vide order dated 23-4-2007. The instant revision petition has been filed against the aforesaid order of the Shariat Court.

3. A copy of the application, moved by Sardar Abdul Hameed Khan, the learned counsel for the respondents, was received through fax by the office, which was placed before this Court. This application was moved for adjournment of the case. The application contains that due to unavoidable circumstances, the .learned counsel is unable to appear before this court. No reasons for adjournment of case has been assigned in the application. Even otherwise the case was fixed for arguments before the Court and it could not be adjourned without some reasonable justification. It was enjoined upon the learned counsel for the respondents to state reasons in the application, but no cogent and solid reason has been assigned in the application, therefore, this case could not be adjourned. This application is rejected and the arguments have been heard.

4. Mr. Asghar Ali Malik the learned counsel for the petitioner, contended that the learned Single Judge of the Shariat Court was not competent to transfer the case from one place of sitting to another place of sitting. He submitted that only the learned Chief Justice can transfer the case from one place of sitting to another, therefore, the learned Judge transferred the case without any jurisdiction. It was next submitted by the learned counsel that on the one hand the application of the petitioner for adjournment of the case was accepted and on the other the application for transfer of case was disposed of without hearing the petitioner. The petitioner was condemned unheard.

5. We have heard the learned counsel for the petitioner, the learned Advocate-General and perused the relevant record. The perusal of the record shows that the case was filed at the principal seat Muzaffarabad. Now the question arises whether from one place of sitting the case can be transferred to another place of sitting by a learned Judge of the Shariat Court? Rule 22 of the AJ&K Shariat Court (Procedure) Rules, 1982 contains as under:-- "Place of hearing of appeals.--Unless otherwise directed by the Chief Justice ordinarily an appeal shall be heard at the principal seat of the Court or any District Headquarters appointed by the Chief Justice at the place of sitting of the Court." The aforesaid provision of law clearly contains that ordinarily the case shall be heard at the principal seat of the Court unless otherwise directed by the Chief Justice, which means that the case can be heard at the other place of sitting only by the directive of the learned Chief Justice of the Shariat Court. Therefore under the aforesaid provision of law only the learned Chief Justice of the Shairat Court can transfer the case from one place of sitting to another. The learned Judge of the Shariat Court was not competent and authorized to transfer the case from one place of sitting to another. Therefore the learned Judge was not competent to transfer the case from Muzaffarabad to Rawalakot circuit. He has wrongly transferred the case without any jurisdiction.

6. It would also not be out of place to mention here that even otherwise on 23-4-2007 the learned counsel for the petitioner moved an application for adjournment of the case on the ground that he was busy in murder cases at Rawalakot Circuit. This application was accepted by the learned Judge of the Shariat Court. For having proper perception, we would like to reproduce the relevant portion of the order of the learned Judge which is as under:

The aforesaid order of the learned Judge clearly contains that the application of the petitioner for adjournment of case was allowed. When his application for adjournment was allowed, then the learned Judge should have adjourned the case, but at the same time he accepted the application for transfer of case on the same day without providing an opportunity of hearing to the petitioner. The petitioner was condemned unheard, while under law it was enjoined upon the learned Judge of the Shariat Court to obtain the objections from the other side on the application for transfer of case and then he should have disposed of the matter after hearing both the parties.

7. The nutshell of the above discussion is that this revision petition is accepted and the order of the learned Judge of the Sahriat Court dated C 23-4-2007, whereby the application for transfer of case was accepted, is hereby set aside. N.H.Q./23/SC(AJ&K) Petition accepted.