2017 PLP 379 (YLRN)

AZIZ-UR-REHMAN, J.

Through instant application under section 526, Cr.P.C, out of five accused persons involved in the case only two of them i.e. accused namely Mashooque Ali son of Naseer Khan and Ghulam Muhammad son of Noor Muhammad are seeking transfer of the Sessions Case No.529/2014 arising out of Crime No.60/2014 under section 324, 114, 147,148,149, 337-H(2), 506(2), 504, P.P.C. of P.S. Jhol District Sanghar from the court of learned IInd Additional Sessions Judge Sanghar to any other court on the ground that the learned trial Judge has pressurized the applicants to settle the matter as per wish of respondent No.2/complainant. Besides, in the transfer application it has been asserted that the learned trial Judge has failed to appreciate all the grounds available on the file and framed the charge against the applicants amongst others by overlooking the available grounds/materials. On 16.12.2014, when the case was called besides issuing notice to the respondents, comments were also called from the respondent No.1. The learned Additional District @ Sessions Judge-II, Sanghar in response thereof has submitted his comments. Per comments, on 15.07.2014, the R & Ps of Cr. Bail Application No.529/2014 [Naseer Khan and others v. The State] were received by the learned trial court by way of transfer. On the same date i.e. 15.07.2014 the present applicants/accused amongst others were admitted to 'ad-interim pre arrest bail'. Thereafter on 13.08.2014 Mr. Suneel Kumar advocate filed 'vakalatnama' on behalf of the applicants/accused along with adjournment application and the case then was adjourned. Thereafter, on 15.09.2014, 17.10.2014 and 10.12.2014, learned counsel for the applicants sought adjournments on one or the other pretext. Per comments, another Sessions Case No.338/2014 [St. v. Mashooque Ali and others] arising out of the above crime, is also pending before the trial court in which case the charge has also been framed. In the comments, the allegations leveled against the learned IInd Additional Sessions Judge, Sanghar have been vehemently denied as being false and frivolous. In the comments it has been stated that the purpose of the instant transfer application under section 526, Cr.P.C. is nothing but seems an attempt to get favourable orders. Moreover, the accused No.1 is a 'Court Bird' as number of cases are pending against him. Nevertheless, in the comments it has been stated by the respondent No.1 that if, the above case is transferred to some other court then also he has no objection to such transfer of the case. Learned counsel for the respondent No.2 has argued that applicant has failed to make out any valid ground for transfer of the case from the trial court to any other court. He further contends that mere allegations against the learned IInd Additional Sessions Judge are not sufficient to transfer the case as wished by the applicant. In support of his contention he has relied upon the case Altaf Hussain v. The State and another [PLD 2014 Sindh

287. The relevant part of the above Judgment reads as under:- "b. Before parting with this case, it may be observed that in case a transfer application containing allegations against the Presiding Judge if allowed, it would impliedly mean that such allegations against the Presiding Judge have been deemed to be correct. Such a situation would certainly lower the image, dignity and honour of judiciary in the eyes of public at large. It is only because of this reason that withdrawal or transfer of a case from one court proceeding therewith, is allowed only in exceptional circumstances where the grounds urged in support of withdrawal or transfer are supported by strong, cogent reasons and evidence. If such practice is not followed strictly, the parties are likely to take undue advantage by filing applications for transfer of their cases on flimsy, frivolous and baseless grounds. While considering a transfer application, it must be kept in mind that the parties should not be allowed to pick and choose the court of their own choice or liking." Learned DDPP has also seriously opposed the instant transfer application by submitting that the cases cannot be transferred mere on the basis of allegations and per wish and whims of the applicants. I have heard learned counsel for the parties and perused the materials available on record. The grounds taken for transfer of the above case besides frivolous are without any substance. The applicants have failed to place on record any materials to show that the learned trial court has acted in a partial and/or biased manner. The allegations leveled against the learned trial Judge ex-facie are false, fabricated and afterthought. The pleas raised/taken otherwise are also not supported by any strong cogent or convincing materials. It is now well settled that cases should not be transferred from the court of competent jurisdiction unless and until the allegations/grounds taken are supported by cogent material/convincing evidence. In view of the above, instant Cr. Transfer application merits no consideration as being devoid of merits as such the same is dismissed. The learned trial court is however, expected to decide the Sessions Case strictly in accordance with law and expeditiously. HBT/M-37/Sindh Application dismissed.