' Through this Transfer Application, under section 526, Cr.P.C. Applicants Raza Muhammad, Wazir Ahmed, Gul Bahar and Ramzan, all shown to be residents of village Gul Bahar Ghoto, Deh Kacho Bindi, Taluka Ghotki, District Sukkur, seek transfer of the Sessions case titled, State v. Wazir and others, registered under section 302, 147, 148 and 149 P.P.C. Together with section 13-D of the Arms Ordinance, as reflected in Crime No,4 of 1989 of Police Station Kacho Bindi, District Jacobabad, and currently pending in the Court of the Additional Sessions Judge, Kandhkot, District Jacobabad, from the files of the said Court to any other competent Court of law, functioning in adjoining District Sukkur.
2. F.I.R., dated 14-7-1989, in relation to Crime No,4 of 1989, aforesaid, shows that the First Informant's relative, Wali Dad, was killed by the four applicants herein and their three companions, latter of whom are since absconding, near the lands of Sardar Khan Ghoto at 7-00 a.m. On that day F.I.R. Of the incident was lodged at 1010 hours at the referred Police Station.
3. Subsequently, another F.I.R. Was lodged by applicant Raza Muhammad, on the same date but at 1315 hours, at Police Station Ghotki which, apparently, because of lack of jurisdiction, was forwarded and registered at Police Station Kacho Bindi at 1430 houRs, Here it is to be clarified that both in Sukkur and Jacobabad Districts, there are distinct Dehs known as Kacho Bindi and such, subsequent, F.I.Rs, were lodged, successively, at Police Stations, both of which, were in District Sukkur. The F.I.R., lodged by applicant/accused Raza Muhammad, is coverd by Crime No, 16 of 1989 of Police Station, Kacho Bindi, District Sukkur, and implicates some ten accused persons, including deceased Wali Dad Arbani in offences, allegedly, committed under sections 307, 114, 147, 148, 149 and 504 P.P.C., indicating the place of incident as village Sultanabad near Primary School, Deh Kacho Bindi, and distance from the Police Station, as 2 K.M. Towards south. In such crime, the allegations proceed on the basis that informant's relative Meher Ghoto and others had murdered Khawand Bux and Manther Arbani, in which case the said Mehar Ghoto and others were challaned at Police Station Ghotki and that the case was pending. Allegedly, Taj Muhammad Arbani had threatened to take revenge of the murder and the Ghotos, therefore, had to be careful/cautious due to fear of Arbanis. On such basis; it was alleged that the complainant party were waylaid and the alleged offence, as disclosed in the F.I.R., was committed at 6-45 hours on 14-7-1989.
Significantly, as reflected above, while Wali Dad, aforesaid, was shown as deceased in Crime No,4 of 1989 of Police Station, Kacho Bindi, District Jacobabad, such deceased was cited as one of the accused persons in Crime No, 16 of 1989 of Police Station Kacho Bindi, District Sukkur.
4. It is the contention of Mr. A.R. Farooq Pirzada that applicants/accused herein fear severe reprisals from the other side for what has, ostensibly, come to pass and that if the trial continues in a splitted manner, such that Crime No,4 of 1989 is allowed to be tried by the Additional Sessions Judge, Kandhkot, and Crime No, 16 is permitted to proceed with by the Sessions Judge, Sukkur, the likelihood is that the opposite party would, in a comparatively less populated area of Jacobabad, do away with the lives of one or more of the applicants/accused involved in these proceedings. As against this, Mr. Abdul Ghani Shaikh, for the , respondent No,2 argues that all the four applicants/accused persons are in police custody and, as and when they are brought to Court, they are so brought under proper police escort and, even otherwise, because of the ascension of their three accomplices the case is not, presently, likely to approved at all, leaving little likelihood of any such eventuality, as apprehended. As to the counter cases, Mr. Abdul Ghani Shaikh contends that these are not between the same set of persons. Further, it is urged that, even if transfer is made, it can be made of the case pending in the Sessions Court, Sukkur, to be dealt with and tried alongside the case pending before the Additional Sessions Judge, Kandh Kot and not vice versa.
5. Mr. Zawar Hussain Jafferi, learned A.-A.G. However, does not oppose the Transfer Application.
6. I have given very serious thought to this Transfer Application. The rule as to transfers in counter- cases, if they be counter-cases at all, is well established and such rule is that cases of the character should be so placed that it is only in one forum that the trial takes place and concludes.
This is a salutary rule because it ensures the convenience of the parties and that of the witnesses, on the one hand, and results in avoidance of conflict of decisions, on the other. Not Only this, trial before one Court and at one venue makes it possible for the Court of trial to examine the cases in their entire perspective and has the added advantage of recourse to the whole record, available before it, so that the controversy can be, more effectively, justly and conveniently, disposed of.
Reference in this connection may be made to Taj Masih v. The State and 5 others 1986 P Cr. L J 671, Muhammad Idrees alias Din Muhammad v. The State and 23 others 1986 P Cr. L J 1679 and Akram Khan and 6 others v. The State and 7 others 1989 P Cr. L J 183.
7. At this stage, as to the objection of Mr. A. Ghani Shaikh, it may be pointed out that the concept of counter-cases is not as limited as is, at times, understood. While, speaking strictly, counter-cases are those, which pertain to the same occurrence or incident between the same or similar parties, purportedly, advancing different versions to serve or project the conflicting interests involved, yet, there may be and are cases, where the occurrences are shown at different places, which may be far apart and may not tally and, likewise, the parties in their identity may not be absolutely common. However, a Court of law, when called upon to examine the matter, is to take a broader and fairer view of the same, depending upon the substance in preference to the form of the controversies and, if a clear connection is shown in the incidents and the parties, prima facie, satisfying a judicial mind that what has been projected by the two sides is a counter version of the same episode, such should be treated to be so. In the instant case, on the facts, disclosed, timings and nature of the occurrences and the parties, substantially, arrayed against each other, I have no doubt that the versions in the two F.I.Rs, are clearly such counter-versions.
8. Besides, the rule as to counter-cases need not invariably be limited to counter-versions, as such.
It is possible and even likely, that different crimes, between the same or similar parties may have been given rise to, on account of an earlier feud, that could have operated as a motive for either. If that be so, and that is what, in effect, is alleged here, it may, still, be in the interest of justice to have the two links, in the chain of the same controversy, dealt with, if just and convenient, in the same forum. This test, also, the present cases satisfy because, as alleged in Crime No, 16 of 1989, the cause for the conflagration on 14-7-1989 was to be found in the context of the double murders of Khawand Bux and Manthar, both alleged to have been caused or brought about by the kinsmen of the present applicants/accused. Such case is, also, said to be pending before the Sessions Court, Sukkur. This, amongst other matters, must weigh with a Court contemplating upon a plea of transfer.
9.Another aspect of a case for transfer, under section 526 Cr.P.C., is convenience to the parties or witnesses or, in the alternative, apprehended violence or harassment to either. In Crime No,4 of 1989, complainant Gul Muhammad and his witnesses, Haji Din Muhammad and Jado are all residents of District Sukkur, whereas P.C. Saheb Khan, P.C. Nabi Bux, SHO Syed Mohiuddin, Tapedar and Doctor Shafi Muhammad, all official witnesses, together with mashirs Nek Muhammad and Rabboo are said to be residents of Jacobabad. Correspondingly, in Crime No, 16 of 1989, complainant Raza Muhammad, P.Ws. Wazir, Illahi Bux, Muhammad Saleh, Mir Hazar and mashirs Muhammad Ramzan and Muhammad Bux are all residents of District Sukkur, whereas out of the accused Wali Dad deceased, Jado and Allah Dino are also, admittedly, residents of District Sukkur.
As to the remaining accused, while their residential village is indicated, it is not clear and was not made so at the bar, whether the same falls within the District Sukkur or Jacobabad, because the place of incident, on either side, appears to be located in or across a thin dividing line between the two districts. However, the consequences of trials are not, for if the trial is to take place in the Sessions Court, that is nearest to the place of incidents, as given out from either side, the same, it is agreed, would be 35 and 125 miles respectively in respectively in the context of the locations of the Courts at Sukkur and E Jacobabad. In other words, the Courts at Sukkur would be nearer. This aspect of the matter cannot be ignored.
10. It is, really, difficult to understand as to why such serious opposition has been made to transfer of the case, covered by Crime No,4 of 1989, to the Sessions Court Sukkur when, apparently, it would be more convenient both to the complainant side in either case, as well as, to at least a substantial number of accused and witnesses. 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 F projected transfers, as has been recently reiterated by Naimuddin, C.J. (as he then was) in Jamil Ahmed v. Azam and 2 others 1988 P Cr. L J
841. Such principle applies to this case.
11. Even otherwise, if a trial at some distance, is likely to result in harassment and if the allegation is, as here, that the venue of such trial has been managed, so as to pressurise or cause inconvenience/intimidation to accused persons and transfer sought, on those grounds, is contested, proper exercise of discretion would lie in and interests of justice would be better served, if such transfer is made. Without going into the merits of the controversy and without giving expression to any opinion, at this stage in the proceedings, all that I would say is that, according to the record, as available before me, the H applicants/accused, if what is alleged, as having been done to the kinsman of the other side, is true, can genuinely apprehend danger at a far off and sparsely populated area as Kandhkot. There has been a double murder at one stage, which has been followed by the murder, as evidenced in Crime No,4 of 1989. According to the natural course of events and on the basis of human conduct, as it is known, it is more likely that reprisal would come from the side of the complainant in Crime No,4 of 1989 rather than from the other, to which, also, a faint reference' has been made, if the trials proceed at Sukkur. The argument of Mr. Abdu Ghani Shaikh, further, is that accused are fully protected in police custody a some of them are still absconding thereby precluding any immediate prospect of prejudice or harm. These aspects of the matter are persuasive to some extent but only for the present and cannot be conclusive, in view of what has been said above.
12.On the other hand, Mr. Abdul Ghani Shaikh has himself cited the case of Mst. Sharam Khatoon alias Hakimzadi v. The State and 7 others 1970 SCMR 536, whereby Wahiduddin Ahmed J, speaking for the Court, observed that, in appropriate cases, a police escort can be provided for a party and its witnesses, on dates of hearing. In the first place, I do not see any danger to the respondents in this case for there is no plausible cause for the other side to allegedly continue committing murders, if what has been said in relation to them is correct, and, for another, because the respondents are shown to be residents of District Sukkur itself. Even so if any one of these persons requires police escort, then, in consonance with the rule laid down in the case of Mst.
Sharam Khatoon ibid., on a proper application being made to the relevant Court, necessary order for such escort, for each date of hearing, will appropriately be passed.
13. With the above observations and based thereupon, I would direct that the case covered by Crime No,4 of 1989 and currently pending in the Court of the Additional Sessions Judge, Kandhkot, shall be transferred to the Court of Session at Sukkur, where it would be tried alongwith the case covered by Crime No,16 of 1989 of Police Station Kacho Bindi, district Sukkur. The learned Sessions Judge Sukkur, may also ensure that the earlier dispute, which is said to have been the basis of this acrimony, is also dealt with, if not together, for that may not be permissible, at least simultaneously and in the same forum. At this stage, Mr. Abdul Ghani Shaikh urges and I agree that, till such time as the absconding accused are made available or the learned Court adopts the alternative procedure, the case is not likely to proceed and, therefore, perhaps it would be in order that the witnesses are not made to attend on each and every one of the formal hearings, which should, invariably, precede actual trial and, accordingly, the learned Sessions Judge, I have no doubt, would take necessary steps to see that witnesses are not unnecessarily summoned prior to the actual prospect of proceedings taking place.