1. ' This is an application under section 526, Cr.P.C. For the transfer of Case No, 267/86 State v.
2. Imdadullah and another pending disposal in the Court of IVth Additional Sessions Judge, Sukkur under section 302/34, P.P.C. To any other Court at Karachi or on the original side of this Court.
3. ' Mr. SAIi Ahmed Tariq has appeared on behalf of the applicant. Notice was issued to the respondent and Mr. Abdul Waheed Siddiqui has appeared on hehalf of both the private respondents whereas Mr. M.A.I. Qarni has appeared on behalf of the State.
4. ' Briefly, the facts giving rise to this application are that pursuant to an F.I.R. No,35 of 1985 registered at Police Station, Panoon Aqil, District Sukkur on 29-7-1985 under section 302/34, P.P.0 by the applicant Mubarak Ali in which case one Mahmood Ahmed was killed while he was with his son Farooq Ahmed aged about 12 years. The case was initially sent up before the learned Sessions Judge, Sukkur and during the pendency of the case another F.I.R. Being F.I.R. No,69/86 was registered on 15-9-1986 by 'C' Section Police Station, Sukkur. In that the people from the community of the applicant were arrested and it was alleged that the complainant and the witnesses in that case were the peons of the IVth Additional Sessions Judge. The main grievance of the applicant is that he belongs to an Ahmadi community as such he apprehends that the trial at Sukkur against them would not be conducted in free atmosphere and he apprehends danger to his life if the case is conducted at Sukkur.In order to justify the circumstances in support of his application it has been argued by the applicant's counsel by making reference to the incidents that have occurred at various dates against the people of his community and has pointed out that the police agency due to the influence of the respondents have not been able to lay hands on the culprits. It has also been contended by the learned counsel that the challan in the case was not submitted till 29-9- 1985 and all along case was pending in the Court of Sessions Judge when on 21-9-1986 it was transferred to the Court of IVth Additional Sessions Judge where the two peons who had lodged serve and the learned Additional Sessions Judge was prejudiced against complainant party. Mr. Abdul Waheed Siddiqui has vehemently resisted the application. He has contended that the prayer for transfer of case at Karachi would cause inconvenience to the respondents and they may not be able to put up their defence at Karachi. Mr. M.A. I. Qarni, appearing for the State has, however, supported the application but he has contended that the convenience of the parties, in particular accused, may be kept it consideration and he has raised no objection if by consent of the parties the case is transferred to a nearby District acceptable to both the parties.
5. ' I have perused the papers, in that, the applicant's counsel has made reference to the comments which were called for from IVth Additional Sessions Judge, Sukkur in which learned Additional Sessions Judge has denied the allegation of his personal involvement. However, it is admitted by the learned Judge that he is aware of the fact that seven persons of the community of applicant have been challancd and the case is pending.
6. The learned counsel for the parties including the State counsel had requested for time which was granted and ultimately all the parties to the proceedings have consented to the transfer of this case to Nawabshah. The apprehensions of personal safety of the applicant, the complainant in the case, has been argued by the applicant's counsel vehemently and from the facts and circumstances enumerated and argued by the counsel and the principles for allowing such applications, I am of the view that since parties have consented, in order to ensure fair and impartial trial in an atmosphere in which the parties should not be expected to have any apprehensions or suspicions in having unbiased and prejudiced trial, the case may be transferred to Nawabshah District. In this respect reliance is placed on the case of Muhammad Nawaz v.
7. Ghulam Qadir and another PLD 1973 SC 327 wherein it was held that:- "the transfer of a criminal case from a competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter, it is of paramount importance that parties arraigned before the Court should have confidence in their impartiality. It is one of the important duties of a High Court to create and maintain such confidence and this can be done only by ensuring that so far as practically a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him. What is reasonable apprehension, must be decided in each case with reference to the incident and the surrounding circumstances."
8. From the contentions made before me by the parties' counsel, I am of considered view that the applicant's apprehension involving danger to his life and the atmosphere being hostile is not without fOrce. Consequently, in the interest of justice, I direct that the case now pending in the Court of IVth Additional Sessions Judge, Sukkur be transferred to the Court of Sessions Judge, Nawabshah and he may either himself try the case or transfer it to the file of any Additional Sessions Judge at Nawabshah competent to try the case under the law.
9. ' With these observations, Cr. Transfer Application No, 35 of 1986 is accepted and disposed of as above. .