1969 PLP 826 (SCMR)

Jamil Hussain Rizvi, Advocate‑General West Pakistan (Said Akbar Khan, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Jan Hussain, Advocate Supreme Court instructed by Muhammad Habibullah, Attorney for Respondent No.

2. Date of hearing : 28th October 1959. CORNELIUS, J.‑In this case, leave was granted to the appellant Jamma Khan to appeal against an order of the High Court of West Pakistan transferring to Lahore for trial, a ‑criminal prosecution which had been commenced at Sukkur, a place some 400 miles distant from Lahore in the old Province of Sind. The grant of leave to appeal from such an order is extremely unusual, and in this case, it is likely that if the facts had been more clearly stated in the order of transfer leave to appeal from it would not have been granted. Having now seen the record and heard counsel, we are satisfied that, although the order of transfer to Lahore seems to operate exclusively for the benefit of the accused lust. Zubaida Begum who lives in Lahore, and it must operate also to the prejudice of Jumma Khan the complainant, by placing the handicaps of distance, inconvenience and expense in the way of his proving his case, yet there is one ground taken in the petition for transfer which has not been controverted in his reply by Jamma Khan and which is by itself sufficient to justify the order of transfer. This ground is contained in paragraph 21 of the spetition foil transfer and reads as follows:‑ "That the petitioner alone has been ordered to be summoned by the Court in the above‑mentioned case at Sukkur, under section 403, P. P. C. and her going to Sukkur under the circumstances is throwing herself at the mercy of the respondent who had manipulated all this to kidnap her forcibly." This averment is supported by an affidavit. Both in the application for transfer as well as in the supporting affidavit, it was alleged that Jumma Khan had made overtures for marriage with Mst. Zubaida Begum which had been rejected. Mst. Zubaida is an educated woman, being a matriculate, and is aged 18 years. She earns her livelihood as a teacher in a school in Lahore Cantonment. The apprehension expressed in para graph 21 of her petition is therefore not an unreasonable one. Jumma Khan filed an affidavit‑in‑reply, which contains an answer to every paragraph in the petition except paragraph

21. It is urged on his behalf that this omission is due to a mere oversight, but in the circumstances that explanation cannot be accepted. It is also urged that the presence of Mst. Zubaida Begum in the Court at Sukkur could have been avoided by the Magistrate taking action under section 205, Criminal Procedure Code. Such action would of course be at the option of the Magistrate, and the power cannot be extended to avoiding appearance by an accused person in Court at every hearing of the case. It was suggested in the course of the argument that a proper course, which might place the parties on an equality as regards the prosecution of their respective cases, might be that the case should be transferred to an itinerant Magistrate; e.g. the Railway Magistrate, who might excuse appearances by Mst. Zubaida Begum at hearings held at Sukkur and arrange that hearings at which her presence is necessary should take place at Lahore. That however is a matter which it is open to the appellant to raise and maintain before the High Court. No proper ground is made out for interference with the order of transfer and we accordingly dismiss this appeal. Appeal dismissed,