1. ' This is an application under section 526, Cr.P.C. Filed by Nadeem Ahmed Mirza and Naeem Ahmed Mirza who are brothers inter se who are seeking in this application the transfer of private complaint for offence under section 406/420, P.P.C. At present pending in the Court of Resident Magistrate, Larkana to any Court of competent jurisdiction at Karachi.
2. ' The application was admitted to regular hearing on 27-3-1989 and the notice to the State and the respondents was directed to be issued.
3. Mr. G.M. Qureshi, the learned counsel has appeared on behalf of the applicant and Mr. Muhammad Saleem has appeared for private respondent No.2 where as Mr. Jalaluddin Bloch, the learned counsel has appeared on behalf of the A.-G. For the State. It has been contended by the applicants' counsel that a frivolous complaint has been got lodged through respondent No.2 at Larkana with intention to cause harassm ent to the applicants who are real brothers doing business of clearing agent at Karachi. It has been argued by Mr. G.M. Qureshi that in the year 1987 applicants had made an application against the high officials of the Custom Department, Karachi addressed to Prime Minister and other higher authorities. Pursuant to his complaint an F.I.R. Was registered against the Customs Officers being F.I.R. No.30/87, dated 24-10-1987 by the F.I.A. (Crime Circle II) Karachi in which case the applicant No.1 is shown as a main witness/informant at No.1 in the calendar of witnesses due to which custom officials were annoyed and had been threatening the applicants that they would be abducted and murdered, hence in order to achieve the object a private complaint through respondent No.2 has been got filed at Larkana in order to eliminate the applicant and subject the applicant to bodily harm, hence application for transfer of the case from Larkana to Karachi has been filed by applicants so that they may be able to face the trial without fear and be in a position to defend the case, according to the learned counsel in case of appearance at Larkana there is a fear of death and bodily harm and also it would be inconvenient for them to go to Larkana.
4. ' The application has been moved mainly on the ground that both the applicants have never visited Larkana previously and the complainant/respondent No.2 is not known to them nor they had entered into any transaction with him and the applicants had received threats of abduction and killing from the officers of the Custom Department. In the application apprehension has been shown that if the applicants go to Larkana, they might be abducted or suffer bodily harm. The learned counsel for the applicants while pressing the application made reference to the two telegrams sent by the applicants to the District Magistrate, Larkana and also to the Resident Magistrate, Larkana. The applications are dated 11-3-1989 and 13-3-1989 respectively in which it is reiterated that they apprehend that they might be abducted or murdered.
5. ' Mr. Muhammad Saleem, the learned counsel while resisting the application for transfer of the case has contended that the applicants have not produced any material showing connection between the respondent No.2 and the Custom Officials nor his name is disclosed in the application made against Custom Officials. He has further argued that since the offence is allegedly committed at Larkana and the respondent No.2/complainant also resides at Larkana, it would not be convenient for him to appear at Larkana. In support of his contentions he has placed reliance on the following decisions:--
(a) 1987 MLD 1228 (Kar.); (b). 1987 MLD 3085 (Lah.) and (c) 1987 MLD 2695 (Lah.)
6. ' However, it has not been disputed that the applicants are residing at Karachi and have been working as Clearing Agents at Karachi or that the application was moved by the applicant No.1 against the Custom Officials pursuant to which a case was registered by the F.I.A. Karachi and some of the Custom Officials have got pre-arrest bail, Photostat copy of the order is produced which is on the record.
7. ' I have heard both the learned counsel for the applicants and respondent No.2, as well as Mr. Jalaluddin Baloch, learned counsel appearing for the State. Mr. Jalaluddin Bloch has not supported the application and according to him the applicants' proper remedy is to move a abashment application. He further contended that the respondent No.2 would be inconvenienced at Karachi if the case is transferred from Larkana to Karachi.
8. ' I have given my anxious thought to the submissions made by the learned counsel for the parties and I feel that it would be advantageous to reproduce the complaint filed by respondent No.2 under section 420/406, P.P.C. Which reads as under:- {{TABLE TEXT}} "In the Court of Resident agistrate, Larkana Rohail Ahmed son of Muhammad Shamim Mirza, Resident of Shaikh Zaid Colony, Karachi.... versus
(1) Nadeem Ahmed son of Muhammad Shamim Mirza Resident of 3-Cl. Jason Apartment, Clifton, Karachi...
9. Naecm Ahmed son of Muhammad Shamim Mirza, Complainant Accused Resident of J-124 Block C, North Nazimabad, Karachi... Accused "Crime under section 406-420. P.P.C. Complaint of the complainant is as under:- {{TABLE TEXT}} ' I, the complainant is resident of Mohalla Shaikh Zaid Colony, Larkana City. The accused persons are acquaninted to the complainant. About 15 days back, the accused persons had come to visit Mohenjodaro, and they stayed with me. I had to purchase colour T.V. On my saying, they told that they had T.V. And further they asked me to pay them the money, they would deliver the same at there, while my money would remain as 'Amain' (Trust). I paid them Rs.15,000 in cash before the witnesses. They gave me assurance and went away saying that they would deliver T.V. At there.
10. After one week, I went to them. They did not give me satisfactory reply. Now, I have come to lodge report that the accused persons, after giving me assurance had committed breach of trust.
11. ' I am complainant.
12. ' Investigation may be made." On original Signature in Sindhi language. Of complainant, Rohail Khan. Witnesses:
(1) Ali son of Qalandar Bux Qadri, Resident of Village Valeed, Taluka, Lark ana.
(2) Azhar Ali son of Rajib Ali Kori, Resident of Village Valeed, Taluka Larkana."
13. ' The learned Resident Magistrate after recording the statements of complainant and the two witnesses under section 202, Cr.P.C. Passed the order to the following effect on 22-2-1989:-- "From the perusal of statement of complainant and witnesses namely Ali Muhammad Qadri and Azhar Ali Kori, it appears that the offence prima facie under section 420-406, P.P.C. Is made out Issue B/W against the accused in the sum of Rs.5,000 and P.R. Bond in the like amount. Put off to 12- 3-1989. Complainant directed to attend. Dated 22-2-1989. (Sd.)
14. Resident Magistrate, Larkana."
15. ' After hearing the arguments of the learned counsel for the parties and from the examination of the documents available in the file, I have reached the following conclusions:-- The main plea of the applicants in this transfer application is that respondent No.2 had been set up by the Customs officials to file private complaint at Larkana and I find substance in the apprehension of the applicants that if they leave the city of Karachi and go to Larkana they are likely to be abducted and put to danger of life at Larkana as they have received such threats repeatedly. The applicants have filed affidavit in proof of the allegations made in the application and the respondent, on the other hand, has not filed any counter-affidavit to show that the apprehension of the applicants is unjustified, baseless or unfounded, as such in the circumstances the unrebutted allegations which are not controverted are, in my view, established. As regards the contention raised by the learned counsel for respondents Nos. 1 and 2 that inconvenience would be caused to the respondent, in my view, the convenience of accused is preferable upon convenience of complainant and reference may be made to the case of Muhammad Jamshed v. The State reported in 1985 MLD 66 and in the case of Jumma Khan v. The State and others 1969 SCMR 826 the Honourable Judges of the Supreme Court allowed the transfer of the case from the criminal Court at Sukkur to one at Lahore, on the ground of apprehension of forcibly kidnapping by the opposite party at Sukkur.
16. In view of the above legal and factual position and the peculiar circumstances of the case, I feel persuaded that the allegations made by the applicants are not without force and I am of the view that the apprehension in the mind of the applicants is not unfounded, baseless or unjustified.
17. Consequently I have come to the conclusion that it would be in the interest of justice to transfer the case from Larkana to Karachi. Accordingly the transfer application is allowed and it is directed that the private complaint (Rohail Khan son of Moujuddin v. Nadeem Ahmed and Naeem Ahmed) under section 406-420, P.P.C. Pending in the Court of Resident Magistrate, Larkana shall be withdrawn from the file of Resident Magistrate, Larkana and transferred to the file of District Magistrate, Karachi (East) who shall try the case himself or make it to any other First Class Magistrate at Karachi competent to try the case.
18. ' Before parting with the case, I would like to express the hope that the trial Court would also expedite the disposal of the case in which apparently apart from the complainant, there are only two witnesses cited in the private complaint.
19. ' Criminal Transfer Application No.13 of 1989 is granted as above.