2017 PLP 1985 (YLR)

MUHAMMAD HUMAYON KHAN J.

This Criminal Transfer Application is filed for transfer of special case No. 24 of 2012 re: State-v. Muhammad Ismail Shaikh and others from the court of learned Judge, ATC Khairpur to any other competent court having jurisdiction.

2. The relevant facts of the case in nutshell for the disposal of this Crl. Transfer Application are that complainant SIP Ghulam Abbas Shar, SHO, Police Station Lakha Road lodged FIR on behalf of State bearing Crime No. 05 of 2012 at Police Station Sadiq Kalhoro-Khairpur on 22.02.2012 at 1500 hours against applicants and others, for offences under sections 302, 364, 324, 353, 404, 120-B and 109, P.P.C. in respect of an incident alleged to have taken place on 20.02.2012 at 1730 hours. After usual investigation the challan was submitted before the learned Judge, ATC, Khairpur, where the applicants and other accused are facing trial. Record reflects that after framing of charge, trial commenced and prosecution led evidence of all the prosecution witnesses. Now after recording of statements of accused, the case is fixed for pronouncement of judgment.

3. We have heard learned counsel for the applicants as well as learned Additional P.G. and perused the record meticulously.

4. The learned counsel for the applicants contended that the learned trial Judge during cross-examination put answers in the mouth of the prosecution witnesses, which shows bias on his part. He further submitted that the behavior of the learned trial Judge with the applicants is harsh during the proceedings and hence the applicants have no hope of justice and fair disposal of the case. He further stated that the applicants have lost their confidence. He finally submitted that if the matter is proceeded, the rights of the applicants shall highly be prejudiced and therefore it is a fit case for transfer. However, the learned counsel for the applicants has not cited any case law in support of his arguments.

5. Learned Additional P.G. vehemently opposed the instant transfer application on the ground that after conclusion of trial by the trial court the case is now fixed for pronouncement of judgment and at this stage, filing of instant transfer application by the applicants would tantamount to prolong the case which is not justified.

6. Pursuant to orders of this court, learned trial Judge furnished comments vide letter dated 04.01.2017 stating therein categorically that the trial has been concluded and case is now fixed for pronouncement of judgment, as such we are not impressed with any contention of the learned counsel for the applicants for the simple reason that none of the contention is supported by any cogent reason or proof and hence all the contentions are totally misconceived and contrary to law.

7. It is a well-established legal proposition that justice is to be done without fear or favour, hence, the Presiding Officers are equally to be protected from frivolous transfer applications in order to achieve the transparent even-handed justice so that one of the litigant may not be in a position to overawe the Presiding Officer which may ultimately result in tilting the scales of justice under the fear of maligning, therefore, while exercising jurisdiction to transfer of cases from the sub-ordinate Courts, a balance has to be struck in order to ensure that the cases are not transferred merely on the basis of suppositions, unfounded and conjectural apprehensions. Thus, merely an adverse judicial order passed against a party, will not solely be a sufficient ground for transfer of the case as the aggrieved person has a remedy to challenge the order before a higher forum. Our this view finds support from the cases of (i) Sameer Ehsanullah Makhzan and 3 others v. Muhammad Asif Zaman and 3 others (PLD 1993 Lahore 554) and (ii) Mian Muhammad Rafiq Saigol v. BCCI and others (1996 CLC (Lahore) 1390).

8. No other substantial ground or material has been brought on record on the basis whereof, it could be said that the learned trial Judge is either prejudiced or biased against the applicants, which may justify the transfer of the case.

9. In view of the above discussion, this Crl. Transfer Application is dismissed in limine.

10. Before parting with this order, it is necessary to give direction to the learned Judge, ATC, Khairpur to decide the case within a month in accordance with law and compliance report should be submitted to this court through Additional Registrar. WA/A-11/Sindh Application dismissed.