' MAHMOOD AHMAD BHATTI, J.---Saqlain Asad, the petitioner has filed this petition under section 526, Cr.P.C. For the transfer of case FIR No. 67/2013 dated 7-3-2013 registered under sections 302, 148, 149 and 109, P.P.C. At Police Station Ghazi Abad, Chichawatni, District Sahiwal from the Court of Mr. Zubair Aziz Cheema, learned Additional Sessions Judge, Sahiwal, to another Court of competent jurisdiction at Chichawatni.
2. The background in which the instant transfer application has come to be filed is that the petitioner lodged the aforementioned FIR against Muhammad Asghar, Abdul Ghafoor, Ghulam Samdani and Muhammad Azam, respondents Nos. 2 to 5, alleging that they murdered his father and mother. Needless to say after completing of the codal formalities, the case was sent up for trial. On 7-6-2013, learned Sessions Judge, Sahiwal, entrusted the case to Sardar Muhammad Iqbal Dogar, learned Additional Sessions Judge, Chichawatni. He set down the case for 186-2013 for framing of charge. However, the accused requested for adjournment on the ground that they were yet to engage a counsel. Resultantly, the case was adjourned until 28-6-2013. It seems that having engaged as many as three counsel, one of the accused, Muhammad Asghar, respondent No.2 herein approached the learned Sessions Judge, Sahiwal by making an application to him, seeking to transfer the case from the Court of learned Additional Sessions Judge, Chichawatni and to entrust the same to a Court at the District Headquarters, Sahiwal. This application was made on 22-6-2013, alleging therein that the accused/petitioner apprehend danger to his life at the hands of the complainant party. It was maintained by him that he is a resident of Tehsil Arifwala while the complainant party hails from Tehsil Chichawanti. It appears that to forestall and pre-empt the objections of the Court, the petitioner made references to a certain Notification issued by this Court. As a matter of fact, he banked upon Notification No. 7886/RHC/MIT dated 25th May 1999 so as to pave the way for the transfer of the case from Chichawatni to District Headquarters, Sahiwal.
3. As it turns out, the learned Sessions Judge, Sahiwal granted the application moved by Muhammad Asghar, the accused. It would be worthwhile to reproduce the reasoning given in the order dated 28-6-2013 passed by the learned Sessions Judge, Sahiwal:-- 'In view of the contents of the application and arguments of learned counsel for the petitioner and relying upon the Notification No.7886-RHC/MIT dated 25-5-1999 issued by the Hon'ble Lahore High Court, Lahore, this petition is accepted and resultantly the case mentioned above pending in the court of Sardar Muhammad Iqbal, learned ASJ, Chichawatni is withdrawn from his court and transferred to the Court of Mr. Zubair Aziz Chema, learned ASJ, Sahiwal for its disposal in accordance with law. The parties are directed to appear before the learned transferee court on 29-6-2013 for further proceedings. Copy of this order be sent to both the learned courts for information and compliance.'
4. Choudhary Khawar Siddique Sahi Advocate, learned counsel for the petitioner, duly assisted by Mian Abdul Qayyum Assistant Prosecutor General, argued that order dated 28-6-2013 passed by learned Sessions Judge, Sahiwal, whereby he ordered the transfer of the case from the Court of learned Additional Sessions. Judge, Chichawatni to the Court of Zubair Aziz Cheema, learned Additional Sessions Judge, Sahiwal was unjustified, uncalled for and unwarranted, if not altogether illegal. They also questioned the reliance placed by the learned Sessions Judge, Sahiwal upon Notification No.7886-RHC/ MIT dated 25-5-1999. According to them, totally wrong construction was put upon the aforesaid Notification. It had no application at all to the facts and circumstances of the case. It was pointed out by them that the occurrence took place in the remit of Police Station Ghazi Abad, Chichawatni. The complainant as well as the eye-witnesses all hail from there. The complainant/petitioner claims to have already received life threats from the accused. He has placed on record a sworn statement to this effect.
5. On the other hand, Mian Mehmood Rasheed Advocate, learned counsel for the accused/respondents supported the order dated 28-6-2013 passed by learned Sessions Judge, Sahiwal. He also placed reliance upon Notification No. 7886- RHC/MIT to fortify and buttress his arguments. He submitted that if the trial was held at Chichawatni, the accused would be done to death by the complainant party.
6. Arguments heard. Record perused.
7. I have considered the submissions made by the learned counsel for both the parties carefully, and I am inclined to accept this application for the following reasons:- ' To begin with, section 526 of the Criminal Procedure Code, 1898 deals with the transfer of criminal cases. It inter alia provides that:-
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or.
(d) that an order under this section will tend to the general convenience of the parties or witnesses.
In the instant case, two persons were murdered, and the accused stand indicted for those murders.
It is the genuine concern of the complainant and the witnesses for that matter that their life would also be in danger if they had to go to Sahiwal on various dates of hearing. Furthermore, the offence was committed in the area of Police Station Ghazi Abad, Chichawatni, and if the trial is to be concluded swiftly, it would be convenient for the complainant and his witnesses to appear at Chichawatni.
' It cannot be lost sight of that another. FIR No. 35/2013 under sections 148, 149, 440, 337-H(2), P.P.C.
Stands registered against the accused and their trial in that case is being held at Chichawatni.
Incidentally, the latter FIR was lodged by Bashir Ahmad who was murdered in case FIR No.67/2013 dated 7-3-2013, the transfer whereof was sought by the accused.
' As regards the apprehension of the accused that should the- trial be held at Chichawatni, they would be done to death by the complainant party, there is not a shred of evidence to substantiate their allegation.
' This brings me to Notification No. 7886-RHC/MIT dated 25-5-1999 issued by the Member Inspection Team, Lahore High Court, Lahore. If the wording of this notification is dissected and analyzed, it would be crystal clear that an option was given to the accused whether he would like to be tried at the Tehsil Headquarters.
' And this option was to be exercised by him before the Magistrate, where report under section 173, Cr.P.C. Is submitted. To all intents and purposes, this option is to be exercised before the case is sent up for trial before the Sessions Judge of a District. In the instant case, it is borne out by the record that no such wish was expressed by the accused before the learned Magistrate nor was such a demand made before the learned Sessions Judge, Sahiwal, who, on 7-6-2013, entrusted the case to the Court of Sardar Muhammad Iqbal Dogar, learned Additional Sessions Judge, Chichawatni in the presence of Muhammad Asghar, accused. Be that as it may, nowhere has option been given to the accused to get a case transferred from Tehsil headquarters to, the District headquarters of a district, as has been wrongly construed by the learned Sessions Judge, Sahiwal.
Therefore, the reliance placed by him on the Notification No.7886-RHC/MIT dated 25-5-1999 to transfer the trial from Chichawatni to Sahiwal is misplaced and inapt, to say the least.
8. For what has been stated above, this petition seeking to transfer case FIR No.67/2013 dated 7-3- 2013 from the Court of Zubair Aziz Cheema, learned Additional Sessions Judge, Sahiwal is allowed, thereby retransferring the same to the Court of Sardar Muhammad Iqbal Dogar, learned Additional Sessions Judge, Chichawatni, to which the case was initially entrusted for trial.