1989 P Cr (PLP)

This is an application under section 526/561‑A, Cr.P.C. on behalf of applicants Hamzo Khan Plaijo and others for transfer of the case from ‑the Court of Additional Sessions Judge, Thatta and it is also prayed that Sind Government be directed to arrange the trial of the accused within the jail premises of Central Jail, Hyderabad, Nara or Karachi or Juvenile Prison, Landhi, Karachi. The cases against the applicants under sections 302, 307, 504, 147, 148, 149, 114 and 13‑D Arms Ordinance are pending in the Court of Additional Sessions Judge, Thatta. The incident, as it appears from the papers, took place on 28‑3‑1989 at 13‑00 hours in District Council Meeting Hall at Makli. Applicants were arrested and case was sent up for trial in the Court of Sessions Judge and now it is pending in the Court of Additional Sessions Judge, Thatta. . Application was admitted on 14‑5‑1989 and notice was ordered to the Advocate‑General as well as to the complainant. Mr. Abdul Waheed Katpar, learned counsel for the applicant submitted that applicants have very strong apprehension that the moment they are brought out before an open Court complainant party will shoot them down. It is submitted that due to the delicacy of the situation, the police of Thatta took the accused and confined them in Jail at Hyderabad and also remand was not taken from any Magistrate of Thatta District. In support of this application, Mr. Katpar also submitted the affidavit of Mauledino while no counter‑affidavit has been filed by complainant. Complainant Syed Ghulam Akram Shah was present and he submitted that it is proper that case be tried at Thatta and if not, Karachi will be more convenient to the complainant party. Mr. K.M. Nadeem, learned Assistant Advocate‑General on 10‑7‑1989 opposed the transfer application and referred to a case reported in 1971 S C M R 374, but he requested for time to seek instructions from Government. The matter was taken up on 12‑7‑1989, when Mr. K.M. Nadeem submitted that Government has no objection if case is transferred and if application is made to Secretary Home Department for trial in Jail, the Government will pass necessary orders for trial in jail. The incident took place in District Council Meeting Hall on 28‑3‑1989. The first remand of applicants Hamzo, Muhammad Ismail, Muhammad Umer and Lakhano was taken on 29‑3‑1989 from Additional City Magistrate Noosri, at Hyderabad. A copy of the remand, granted by the Additional City Magistrate, was sent to the Sessions Judge, Thatta. In the report, Incharge of Loonikot Police Post stated that accused could not be taken to Thatta due to law and order situation. The second remand was also taken on 5‑4‑1989 from same Additional City Magistrate Noosri, at Hyderabad. It is contended that it is not possible to produce the accused from hyderabad to Thatta. There are no proper arrangements for trial at Thatta. There is no Central Prison at Thatta. In the reported case referred by the learned Assistant A.‑G. the facts were different and in that case complainant apprehended danger for appearing before the trial Court and he was given protection. In the instant case the investigating agency has even not been able to seek the remand from any Magistrate of Thatta, District, but taken the accused to Hyderabad, where they are still in jail and as pointed out that they could not be produced for trial before the learned 1st Additional Sessions Judge, Thatta up to this time. I am of the view that this is a fit case for transfer and trial in the prison. I, therefore, order that case of Hamzo Khan Palijo and others v. The State pending in the Court of 1st Additional Sessions Judge, Thatta and connected cases under section 13‑D, Arms Ordinance are transferred to Mrs. Qaiser Iqbal, Additional District Judge, Karachi (East). In view of the statement of the learned Assistant A.‑G. for trial in prison, Mr. Abdul Waheed Katpar, learned counsel has submitted that he will make necessary application to Government of Sind for trial of accused in the Central Prison, Karachi, therefore, the directions to the Home Secretary are not necessary when they have already taken the view that Government will have no objection if such a request is made. Finally, in case complainant party feels any apprehensions in coming to Karachi, the Superintendent Police, Thatta, should arrange an escort to take them and conduct them to Karachi and back on the date of hearing. A copy of the order be sent to the Secretary to Government of Sind, Home Department. MA.K./H‑174/K????????? Case transferred.