1990 P Cr (PLP)

I have heard Mr. Syed Ali Ahmed Tariq, learned counsel appearing for the applicant, Mr. Raja Haq Nawaz, learned counsel appearing for the complainant opponent No.2 and Mr. K.M. Nadeem, learned A.A.‑G. appearing for the State, and have also gone through the documents produced alongwith the transfer application. It has been contended by Mr. Ali Ahmed Tariq, learned counsel appearing for the applicant that looking to the circumstances and the prevailing atmosphere at Tando Adam, the applicant apprehends danger to his life if the case proceeds at Tando Adam or even in Sanghar District and, therefore, the same may be transferred to any other District in Sindh. In support of his contentions, the learned counsel has relied upon: (1) P L D 1962 (W.P.) Kar. 864. (2) 1969 S C M R 826. (3) P L D 1979 Lah.

346. Mr. Raja Haq Nawaz, learned counsel appearing for the complainant has contended that the allegations made by the applicant regarding his apprehension are false and baseless. That the applicant himself had moved an application,, to the learned Sessions Judge, Sanghar, for the transfer of the case to Sanghar. That there was no ground to transfer the case from the Court of Civil Judge and F.C.M. Tando Adam and the application was liable to be dismissed. In the alternative it was contended that since the two similar other cases filed by the opponent No.2 are pending at Sanghar, this case may also be transferred to Sanghar. He has relied upon (2) 1971SCMR

374. Mr. K.M. Nadeem, learned A.A: G. appearing for the State has opposed the transfer application and has contended that there was no ground for transferring the case from Tando Adam to any other Court. He has further adopted the contentions raised by Mr. Raja Haq Nawaz. Malik Mohammad Hussain, S.H.O. Tando Adam, who was called by the Court has stated that there was no apprehension of any attack being made on the life of the applicant. I have considered the contentions. The allegations made in the transfer application are supported by affidavit filed by the applicant, affidavit of Mr. Ali Ahmed Tariq, Advocate, copy of plaint in a suit for damages which was filed by Mr. Ali Ahmed Tariq and Mr. Mirza Abdul Rahim Baig, Advocates against opponent No.2 and police officials and Government of Sindh. The applicant has also produced copies of notices, sent to the opponent No.2, and the police officials. The opponent No.2 has not filed any affidavit to rebut the allegations made in the transfer application as well as in the affidavits. As far as statement of S.H.O. Malik Mohammad Hussain was concerned, looking to the fact that a suit for damages was filed by one of the Advocates of the applicant against S.H.O. Sanghar, I.‑G.P. Sindh and opponent No.2 the statement of Malik Mohammad Hussain could not be accepted. There are specific allegations that whenever the case is fixed the opponent No.2 attends the Court alongwith his supporters and raises slogans against the applicant and his community. That even in the deposition, copy of which has been produced as Annexures `D' the opponent No.2 has clearly stated th4t: "It is ajar for him and every Muslim to cause injury to Ahmadis:" These allegations have not been rebutted by opponent No.2, Moreover, while, hearing the transfer application, the Court has‑to put itself in the position of the A applicant and then to see whether the apprehension shown by the applicant was genuine or not. From the above facts and circumstances I have no doubt in my mind that the apprehension of the applicant is well founded.

1. In the case of Mohammad Khan and another v. The State and another P L D 1962 (W.P.) Kar. 864, the applicants moved transfer application in a case pending against them before the Special Judge and 1st Class Magistrate Sanghar, on the ground that they apprehend danger to their lives in view of their enmity with `Hurs', Sanghar, being a `Hur' area and the applicants who live at Mirpurkhas are afraid to travel to Sanghar and the case was transferred from the Court of Sub‑Judge and F.C.M., Sanghar to Mirpur Khas.

2. In the case of Munawar Ali Khan v. Najam Abbas and 7 others P L D 1979 Lah. 346 the case was transferred from the Court of Sessions Judge, Jhang, to the Court of Sessions Judge, Lahore, on the ground that large number of supporters of the parties visit the Court premises when trial of‑the case is held and there was likelihood that they can come to blows on account of being very near to each other and may further aggravate the situation.

3. Juma Khan v The State, 1969 S C M R 826; wherein the case was transferred by the High Court from Sukkur to Lahore on the ground that if the accused goes to attend the Court at Sukkur, she apprehended that she will be kidnapped forcibly, this ground was not controverted in the affidavit by complainant Juma and the case was transferred on the above ground alone. Juma Khan filed criminal appeal before the Supreme Court and their Lordships were pleased to dismiss his appeal observing that: "Accused Mst. Zubeda had expressed an apprehension in paragraph 21 of her petition that if she goes to attend the Court at Sukkur under the circumstances, she will throw herself at the mercy of the respondent who had manipulated the filing of the case to kidnap her forcibly and this allegation has not been controverted in his reply by Juma Khan which is by itself sufficient to justify the order of transfer.

4. In the case of Mrs. Sharam Khatoom alias Hakim Zadi v. State and 7 others 1970 S C M R 536; relied upon by Mr. Raja Haq Nawaz, wherein the case was transferred by the High Court from the Court of Civil Judge and F.C.M., Naushero Feroze District Nawab Shah to Civil Judge and F.C.M. Tando Allahyar, District Hyderabad, on the transfer application filed by the complainant showing apprehension that her life was in danger. The petitioner filed appeal before the Supreme Court and leave was refused with the observations that: "The apprehension of the petitioner was considered by the High Court but the same was not given much importance as it could not be remedied by transferring the case to Hyderabad. There was no doubt whether the petitioner's case was heard at Tando Allahyar or at Hyderabad, the apprehension and danger to her life will be there, and therefore, the High Court had exercised it discretion properly. However, it was further ordered by their Lordships of the Supreme Court that the Superintendent of Police, Hyderabad escort the petitioner and her witnesses from Hyderabad City to the Court of F.C.M. Tando Allahyar on two days which were said to be next dates of hearing in the case."

5. In the case of Mohammad Nawaz alias Nawaza and another v. Mst. Sakina and another 1971 S C M R 374; wherein Mst. Sakina had moved an application before the High Court for the transfer of the case to some other place on the ground that she apprehends danger to her life if she undertakes journey to Depalpur; where the case was proceeding, but the application was dismissed. However, their Lordships of the Supreme Court were of the view that her apprehension may not be wholly unfounded and, therefore, directions were given to the S.P. to arrange for an escort to take Mst. Sakina to the Court on the next date of hearing. From the above discussion, it is clear that the allegations made by the applicant were not rebutted by the opponent No.2 and the apprehension of the applicant was well‑founded. The contentions raised by Mr. Ali Ahmed Tariq, learned counsel for the applicant have consideration force and are supported by the decisions mentioned above. As far as two decisions relied upon by Mr. Raja Haq Nawaz, learned counsel were concerned, there was no cavil with the proposition but the facts of the present case are different and distinguishable. However, in view of the fact that since the applicant had moved a transfer application before the learned Sessions Judge, Sanghar, wherein he had requested for the transfer of the above case to any Court at Sanghar. Even Mr. Raja Haq Nawaz, learned counsel for respondent No.2 has alternatively argued that since two other cases of similar nature filed by the opponent No.2 are pending at Sanghar, this case may also be transferred to Sanghar. I transfer the case (State v. Mirza Mubarak Ahmed Nusrat) under section 298(c), P.P.C. from, the Court of Civil Judge and F.C.M., Tando Adam to Civil ‑Judge and F.C.M., Sanghar, District Sanghar. N.H.Q./M‑1034/K Case transferred.