1. SAJJAD ALI SHAH, J.-Through this application under section 526 of the Code of Criminal Procedure, 1898, the applicants have prayed that proceedings under F.I.R. No.56 of 1990 of Police Station, Tando Adam, pending in the Court of learned Additional Sessions, Judge, Shahdadpur be transferred to the Court of .Sessions Judge, at Karachi (South).
2. Briefly stated the facts for the purpose of deciding this application are that an advertisement -of Bonanza Garment Co. Designed by Paragon Advertising, Karachi was published in daily 'Jang' and daily 'Dawn' on 8th and 10th March, 1990 respectively. The complainant/respondent No.8 on 3rd May, 1990 lodged a report at Police Station Tando Adam that on 18th .April, 1990 the aforesaid publication came to his notice and his found that the name of the Holy Prophet (Peace be upon him) was inscribed at an objectionable place. The case was accordingly registered as Crime No.56 of 1990 under section 295-C, P.P.C. And was sent up for trial before, the Additional Sessions Judge, Tando Adam.
3. The applicants at the relevant time were the Editor and Printer of daily 'DAWN', the respondents Nos.
4. 3, 4 and 9 were/are associated with daily 'Jang', respondents Nos.5, 6 and 7 were/are associated with Paragon Advertising Agency, who had designed the offending advertising/publication whereas respondent No.2 was/is the Chief Executive of Bonanza Garments whose products were advertised through the offending publication.
5. It is asserted that the applicants as well as respondents Nos.2 to 5, 7 and 9 were granted anticipatory bail whereas respondent No. 6 was arrested from Karachi and ultimately was granted bail by the Additional Sessions Judge, Shahdadpur, but for some time he was forcibly prevented from returning to Karachi by the followers of the complainant, who even surrounded the lock-up and the police station and threatened to lynch the respondent No.6, however, he was rescued by the law- enforcing agencies.
6. In the first round of litigation, the applicants/accused moved an application for quashment of the F.I.R. Before this Court, which was dismissed vide judgment dated 4-5-2001 and the appeal filed against the said judgment before the honourable Supreme Court was withdrawn, as the applicants contemplated to file the present application.
7. Mr. Adnan I. Chaudhry, learned counsel representing the applicants while arguing this application has contended that the applicants reasonably apprehend a serious threat to their lives at the hands of the followers of complainant/respondent No, 8, if they are tried at Shahdadpur, as they have threatened to lynch the applicants/respondents and further that, since the case arises f^om extreme feelings therefore, the atmosphere surrounding at Shahdadpur shall be highly charged and it would render a fair and impartial trial at Shahdadpur impossible, as such the application may be allowed. In support of his contention, the learned counsel has placed reliance on the order of Honourable Supreme Court in the case of Ahmad Omar Saeed Shaikh and 3 others v. The State (2002 SCM R 1562).
8. It was next contended that there are nine accused and as many defence witnesses most of the accused persons are old infirm and are not able to undertake the arduous travel from Karachi to Shandadpur, therefore, are entitled to seek transfer on the rule of convenience specially when the alleged crime is based on documentary evidence and does not involve any ocular evidence and or investigation at the place where the F.I.R. Is lodged. In support of this contention, learned counsel has placed reliance on an order of this Court passed in the case of Raza Muhammad and others v.
9. The State (1990 M LD. 1530).
10. Mr. Muhammad Ali Mazhar Advocate appearing for respondents Nos.3, 4 and 9 as well as Mr. Hameedullah Dahri for respondent No.2 have adopted the arguments of Mr. Adnan Chaudhry and have supported the transfer.
11. On the other hand Mr. Raja Haq Nawaz Khan, learned counsel for the complainant/respondent No.8 has vehemently opposed the transfer and has contended that no threats whatsoever were advanced by the complainant/respondent No.8 or his followers nor the applicants/respondents till date have reported any incident of this kind to any law-enforcing agency. It was argued that the applicants have concocted the ground in order to move the present application with the sole intention of protracting the proceedings and to avoid the decision on merits. It was contended that the F.I.R. Was lodged almost 16 years back in the year 1990, therefore, it does not lie in the mouth of the applicants/respondents to say that the surrounding at Shandadpur would be highly charged. It was further contended that the apprehensions expressed by the accused persons do not meet the requirement of the test as laid down by the Honourable Supreme Court in the case of Daud Iqbal Pervez and others v. State (PLD 1990 SC 705). It was argued that self procured mistrust and expression of no confidence on the trial Court cannot be a ground of transfer specially when there are no allegations of bias or partisanship against the trial Judge and in support of this contention, learned counsel- has placed reliance on an order of the Lahore. High Court in the case of Ashiq v.
12. State (1992 M LD 341).
13. As to the second ground, Mr. Raja Haq Nawaz Khan has argued that it is not the convenience of the accused persons only, which is to be taken in account by the Court, but the convenience of the complainant is also to be taken care of. It was contended that since the complainant hails from Tando Adam and so do the prosecution witnesses as such it would be very difficult for the witnesses to travel all the way from Tando Adam to Karachi and if the case is transferred it would remain unattended. In support of his contention that convenience of both the parties are to be taken in account by the Court while deciding a transfer application, the learned counsel has placed reliance on an order of this Court passed in the case of Nasir Zafar v. The State and another (2001 PCr.LJ 937).
14. Mr. Amir Ali Thari, learned State counsel has opposed the transfer and has adopted the arguments of Mr. Raja Haq Nawaz Khan.
15. I have heard the contentions of the learned counsel for the respective parties and have perused the record as well as the case-law referred.
16. The applicants in para.9 of this application have stated that the atmosphere surrounding at Shahdadpur shall be highly charged, which would render impartial trial at Shahdadpur impossible.
17. The applicants further apprehended danger to their lives at Shahdadpur, as the followers of the complainant have threatened to lynch the respondent No. 6 who despite being admitted to bail by the learned Additional Sessions Judge, as alleged was not allowed to come to Karachi by the followers of the complainant. The record further reflects that similar apprehensions were expressed in para 4 of Criminal Miscellaneous Application No. 250 of 1990 seeking quashment of F.I.R. , Though the complainant/respondent No.8 ..Has filed a detailed counter-affidavit, wherein he has vehemently denied all the allegations as well as apprehensions of the applicants, however since the apprehension is a fear, anxiety or uneasiness in the mind of a person, therefore, no amount of denial by a person against whom such apprehensions are expressed are of any consequence and the only test to gauge such apprehension is the yardstick of reasonableness.
18. In order to examine. The reasonableness of the apprehension, as expressed by the applicants, this Court has to place itself in the position of the applicants, as laid down by the Honourable Supreme Court in the case of Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327 (also referred to by the Honourable Supreme Court in the case of Daud Iqbal Pervez (Supra), while examining the reasonableness of apprehensions which may entitle a party to seek transfer by observing:- .
19. "What is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances; and the Court must endeavour, as far as possible, to place itself the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him.
20. Nevertheless, it is not every incident regarded as unfavourable by the applicant, which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as a reasonable man might justifiably be excepted to have."
21. 'In the light of the observation of the Honourable Supreme Court, I am of the view that since the alleged offence of defiling, the name of the Holy Prophet (peace be upon him) is highly sensitive in nature and the complainant as stated by him in the F.I.R. Is Khateeb of Jamia Masjid, Tando Adam and District Khateeb as well as Provincial Convenor, Majlis Amal Tahaffuz-e-Khatame-e-Nabuwat and Amir, Mojahedeen Khatm-e-Nabuwat Pakistan, therefore, the apprehensions of the applicants that the atmosphere at Shahdadpur from where the complainant/respondent No.8 hails would be highly charged cannot be ignored altogether.
22. As to the contention of Mr. Raja . Haq Nawaz Khan that sixteen years have passed since the alleged offence has taken place, therefore, the apprehensions of the applicants are of no consequence cannot be accepted for the simple reason that the nature of alleged offence is such that no amount of time can even reduce the apprehended sentiments lest to say of no consequence.
23. As to the second contention, whereby the applicants seek transfer of the proceedings on the principle of convenience, the position as emerges from the record is that there are nine accused persons and they intend to examine as many witnesses in their defence and all are resident of Karachi, on the other hand there is nothing on record to show that, besides complainant, there are any witnesses which the prosecution would like to examine. The learned counsel for the State though has opposed the transfer, but has miserably failed to demonstrate what inconvenience would be caused to the prosecution in case the proceedings are transferred to Karachi, even the nature of the alleged offence is such that neither it requires local investigation nor ocular evidence or witness of a particular locality. Though there is no cavil to the proposition that the Court while considering transfer of proceedings has to consider the convenience of both the parties, but it is equally settled rule that the convenience' of the accused and his witnesses outweigh the convenience of the complainant and his witnesses. In this context reference can readily be made to the case of Muhammad Jamsheed v. State (1985 M LD 66), wherein Naimuddin, J (as he then was) after placing reliance on the case of Haji Bashir v. Jumo and another (1968 PCr.LJ 1100) and P.H. Metcalfe v. J. Waston (AIR .1924 Patna 708) directed the transfer keeping in view the convenience of the accused whereas in the case of Raza Muhammad and others (Supra), Wajeehuddin Ahmed, J. (as he then was) observed as follows;- "At any event, unless exceptions displace the rule, it is the convenience of the accused and his witnesses, which must outweigh the convenience of the complainants and his witnesses in the context of such projected transfers, as has been recently reiterated by Naimuddin, C.J. (as he then was) in Jamil Ahmed v Azam and 2 others (1988 PCr.LJ 841) such principle applies to this case."
24. In view of what has been discussed above, this criminal transfer application is allowed and the proceedings under F.I.R. No.56 of 1990 of Police Station, Tando Adam, pending in the Court of learned Additional Sessions Judge, Shahdadpur are F directed to be transferred to the Court of Sessions Judge, at Karachi (South) for disposal in accordance with law.