1999 PLP 3025 (MLD)

ANWAR ZAHEER JAMALI, J.

Petitioner has invoked the Constitutional jurisdiction of this Court to challenge the order of respondent No. 1, in pursuance thereof a notification, dated 24-8-1998 has been issued by the Secretary to the Government of Sindh, Home Department, thereby transferring two cases arising out of F. I. R. No. 6 of 1996 Police Station Garhi Yasin and F. I. R. No. 73 of 1993 Police Station Garhi Yasin from the file of Special Judge S. T. A. Court Larkana to the Special Court S. T. A. Nawab Shah. This notification is reproduced as under:-- REGISTRAR SPECIAL COURTS STA/ST, GOVERNMENT OF SINDH HOME DEPARTMENT No: REG(HD)/5-1/66.198.

In exercise of the powers conferred by section 4-A, of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the Government of Sindh, are released to transfer the following cases from the file of Special Judge S. T. A. Court Larkana to Special Court S. T. A. Nawabshah, in the public interest. S. No. FIR No. Name of Accused Under Section P. S 1. 06 of 1993 Karam Khan alias Niaz Muhammad and others 302, P. P. C Garhi Yasin 2. 73 of 1993 Sadaruddin and others 364/147 of 148/P. P. C. Garhi Yasin SECRETARY TO GOVERNMENT OF SINDH HOME DEPARTMENT. No. Reg.(HD)/5-166/98, Karachi, dated 24th August, 1998 According to the petitioner, he is one of the accused in Crime No. 6 of 1996 Police Station Garhi Yasin and one of the witnesses in Crime No. 73 of 1993 of the same Police Station. The cases arising out of both these F. I. Rs. were challaned before the Sessions Court at Shikarpur, however, during the pendency of these cases a transfer application was moved was before this Court and it was allowed by the Hon'ble Chief Justice Mr. Mamoon Kazi (As his Lordship then was) and the cases arising out of F. I. R. Nos. 6 of 1993 and 6 of 1996 Police Station Garhi Yasin were transferred to the Court of Sessions Judge Larkana, for trial either by himself or by any other Additional Sessions Judge, subordinate to him. Subsequently another transfer application relating to F. I. R. No. 73 o1 1993 was also moved and was allowed by an order of the Division Bench of this Court, dated 20-1-1998. Detailed reasons recorded separately contained the following observations:-- "The contentions of the application of accused are not controverted by the respondent/complainant by way of counter affidavit. The facts allegedly suppressed have not been pointed out. Admittedly there is enmity between the parties and due to blood feud many precious lives have been lost on both sides within the jurisdiction of Police Station Garhi Yashin. The shifting of applicant/accused party to Makli District Thatta has not been disputed. It may be to avoid further bloodshed. Besides more or less on the identical grounds two cases between the same parties have already been transferred by this Court from Shikarpur to Larkana. It may be pertinent to point out that in the matters transfer of cases Court has to see the convenience of accused and his witnesses in comparison to the convenience of the complainant and his witnesses unless there are special and compelling reasons for not adhering to this principle. In this matter not only applicant/accused party has shown apprehension to their lives but they have also shown apprehension that they will not get fair and impartial trial at the hands of Presiding of the Court. Justice is not only to be done but it should seem to have been done. " In this manner these cases were transferred and ordered by this Court to be tried by Sessions Judge at Larkana. On 24-8-1998 the respondent No. 1 in exercise of powers under section 4-A, of Suppression of Terrorist Activities (Special Courts) Act, 1975 has issued a notification whereby both these cases which were transferred under the orders of this Court, and were lastly pending for trial before the Special Court (S. T. A.) at Larkana, have been withdrawn from the file of the said Court and transferred to the Court of Special Court (S. T. A.) at Nawabshah. This action of the respondents has given the cause of grievance to the petitioner for filing petition. We have heard Mr. Ali Nawaz Ghanghro, the learned counsel for the petitioner who has contended that the impugned notification, dated 24-8-1998 is based on mala fide and the sole object of issuing this notification by respondent No. 1, is to negate the effect of two orders passed by this Hon'ble Court, whereby both the criminal cases are to be tried at Larkana. The learned counsel for the petitioner further contended that the respondent No. 1 while issuing this notification has condemned the petitioner unheard in the matter and has, thus, also violated the principles of natural justice and for these reasons the impugned notification is liable to be set aside and be declared as without lawful authority and of no legal effect. Mr. Rashid Ali D. Shaikh, the learned counsel appearing for A. A. G. in this case does not controvert the facts as submitted by the learned counsel for the petitioner. However, he has supported the notification, dated 24-8-1998, and opposed this petition. We have considered the arguments of the learned counsel and perused the case record, which goes to show that the notification, dated 24th August, 1998 has been purportedly issued by the respondent No. 1 in exercise of powers conferred to the Government under section 4-A, of the Suppression of Terrorist Activities (Special Courts) Act 1975 (hereinafter referred as section 4-A, of the Act). It will be useful to reproduce the same as under:-- "4-A. Transfer of cases.

(1) Where two or more Special Courts have jurisdiction of cases, etc. wholly or partly in the same territorial limits and the Government constituting the Special Courts or, if one of such Special Court has been constituted by the Federal Government that Government is satisfied that for the general convenience of the parties or witnesses for the ends of justice, it is expedient to do so, such Government may, by notification in the official Gazette direct that a case or class of cases specified in the notification shall stand transferred from one Special Court to another. (2) ................................................ A bare reading of this section would show that such power conferred to the Government under section 4-A, of the Act is not absolute or unrestricted, but subject to the satisfaction of the Government and or for that reasons that such transfer of cases will be for the general convenience of the parties or witnesses or for the ends of justice, if it will be expedient to do so. In the instant case, the perusal of the notification in question, dated 24-8-1998, as reproduced above, unveil that the transfer of the two cases is not based on any of the reasons which could be legitimately made basis for exercise of power under section 4-A, of the Act. It appears from the language of the notification, dated 24th August, 1998 that the only reasons assigned for exercise of such power is "in the public interest" which consideration is alien to the spirit and the S Cope of section 4-A of the Act. Thus, on this ground alone the notification, dated 24-8-1998 cannot be sustained. Besides this, the perusal of the orders passed by the High Court in the two transfer applications moved in these cases would show that such judicial A orders were passed by this Court in exercise of its power under section 526, Cr.P.C. and after due consideration of relevant facts. Therefore, the contention of the learned counsel for the petitioner that the issuance of notification, dated 24-8-1998 by the respondent No. 1 is mala fide and is primarily aimed to dilute the effect and to render such order of this Court as in-effective, also appears to be forceful. Indeed, under section 4-A, of the Act of the Government is empowered to exercise power for transfer of cases within the limits, as evident from the language of this section, but still the Government is expected to give due consideration and respect of the judicial orders of this Court, when the same relates to the same subject. In the instant case, such spirit is lacking and the action taken by the respondents is found arbitrary. Foregoing are the reasons for the short order, dated 1-2-1999 passed in this petition whereby the Notification No. Reg. (HD)/5-1/66./98, dated 24th August, 1998, issued by the Secretary to Government of Sindh Home Department was declared by us as unlawful, null and void. H.B.T./S-219/K Order accordingly.