' SYED HASAN AZHAR RIZVI, J.---The present transfer application has been filed by the applicants for transfer of the Sessions Case No,29 of 2011 (The State v. Baboo and others) under sections 302,147, 148, 149 and 109, P.P.C., pending in the Court of IInd Additional Sessions Judge, Badin to any other Court in Province of Sindh.
2. Mr. Ali Ahmed Kurd, learned counsel for the applicants submits that the F.I.R. No,58 of 2010 of Police Station Kadhan, District Badin was registered on 21-12-2010 for the murder of Mansoor Ali Mallah against Ali Sher, Wahid Chandio, Abdul Sattar alias Fauji, Umer and other unknown persons.
During investigation of the said F.I.R. On 3-1-2011, further statement of the complainant Muhammad Hanif was recorded, wherein he exonerated all the accused persons, resiled from the version of the said F.I.R. And stated that after murder of his .Son he was sad and the eye-witnesses had not met with him, therefore, he had given names of the friends and the relatives of his son on suspicion.
After thoroughly enquiring from the eye-witnesses, meeting with them it was came to his knowledge that Mansoor Ali had accompanied with his friends to the Faisla of the dispute of the land in between Brohi and Chandio communities, when at 1445 hours persons of Brohi community (present applicants) duly armed with deadly weapons came there and killed his son by firing. On the basis of further statement of the complainant on 6-1-2011 police submitted challan in the Court of IInd Additional Sessions Judge, Badin, showing the accused/applicants as absconders. The learned counsel for the applicants submits that in collision of the complainant with I.O., the applicants were implicated in the present case with the intention that Brohi community bow down before the Chandio community. He further submits that the persons of Chandio community are most influential and are originally residents of District Badin, whereas the persons of Brohi community are not the original residents of District Badin. The applicants/accused are residents of District Sanghar and Baluchistan and there is apprehension of danger to their lives while attending the Court at District Badin. It is further urged by the learned counsel for the applicants that the case has been challaned, charge against the applicants has already been framed and the trial is pending. It is also contended by the learned counsel that in a counter case based on Crime No,57 of 2010, complainant Muhammad Zaman resident of Badin was murdered and the accused persons of that crime are advancing threats to the applicants of Brohi community and are making hindrances for smooth trial of the case for which it is not possible for the Brohi community to face trial and get fair justice and therefore, the learned counsel submits that the case be transferred to any other Court in the Province of Sindh.
3. Mr. Abdul Hameed Bajwa, learned counsel for the complainant submits that the instant transfer application has been filed malafidely by the applicants. The applicants on the face of it, are the residents of District Badin, which is evident from the title of the transfer application so as from the affidavits of the applicant No,1, wherein the residence of the applicant has been shown as that of District Badin. The learned counsel for the complainant submits that the complainant is also present with him in the Court. The complainant before the Court has submitted that no compromise between the parties has been effected as yet. The complainant stated before the Court that due to influence and coercion of the applicants he and her wife filed affidavits, which are enclosed with the memo of application. Learned counsel further submits that the prosecution witnesses are poor persons and it will not be possible for them to attend the Court outside the District Badin, as their lives would be in danger.
4. Mr. Mushtaq Ahmed Abbasi, learned DDPP, appearing for the State, has also vehemently opposed the present application.
5. I have heard learned counsel for the parties and perused the material available on record. The applicants have sought the transfer of the pending criminal case against them from the Court of lInd Additional Sessions Judge, Badin to any other Court of Province of Sindh on the ground of apprehension of danger to their lives at the hands of Chandio community. It also appears that all the applicants are the residents of A District Badin, which is evident from their own documents filed with the memo of application. From the contents of the present application it appears that no specific date, time and place has been mentioned by the applicants on which the persons from the Chandio community advanced any threat to them and no such authority has been mentioned to which the applicants approached to lodge the complaint. Simply on apprehension of the applicants for danger to their lives a murder case cannot be transferred. With regard to the security problems because of the tribal rivalry between the Chandio and Brohi communities/tribes when there is no material, available for advancing any threat or no report of any complaint is brought on record, the grant of transfer is unwarranted. The applicants have neither alleged any bias against the Judge of the trial court, nor have shown any ground of mistrust or lack of confidence in him, thus, the transfer of the case on the ground of tribal rivalry between the Chandio and. Brohi communities/tribes and apprehension of danger to their live is hardly be a ground to transfer the case. It is the duty of the Government to maintain law and order situation and the D.P.O/S.S.P. Of the area is responsible to maintain such situation. I am fortified by the judgments passed in ALAMZEB v. KAMAL NASIR (PLD 2004 SC 362), GUL MUHAMMAD v. ZAWAR HUSSAIN (2000 PCr.LJ 1217 (Karachi) and NOOR AHMED v. STATE (2009 M LD 22).
6. In view of the above facts and circumstances, there is no sufficient ground or reason on the basis of which matter may be transferred from the file of IInd Additional Sessions Judge, Badin to any other Court in province of Sindh Consequently, the present transfer application was dismissed in the earlier part of the day by me and these are the reasons for the dismissal of the same.
Transfer .