' MUHAMMAD AQIL MIRZA, J.---This petition under Article 199 of the Constitution has been filed to impugn the order dated 28-4-1994 passed by the Home Secretary of the Punjab Government, whereby he dismissed the application of the petitioner for transferring the trial from the Court of Ch. Zahoor Hussain, Judge, Special Court No, 2, Gujranwala Division.
2. The petition was filed in this Court on 2-5-1994 and the trial stands stayed on account of the interim order dated 3-5-1994. During pendency of the writ petition, Mirza Anwar Beg petitioner has died and in his place his son Afzal Beg has been brought on record as the petitioner.
3. A case was registered vide F.I.R. No,354 dated 7-12-1988 at Police Station, A-Division, Gujrat, on the complaint of petitioner Mirza Anwar Beg, for the murder of his son Mirza Munawar Beg. Four persons, namely, Mian Muhammad Saffdar, Abid Shah, Muhammad Khan and Tanveer are the accused persons in that case. Abid Shah has since died and Muhammad Khan has absconded.
Only Mian Muhammad Safdar and Tanveer are facing trial before the learned Special Court, Gujranwala. Initially the case came up for hearing before Mr. Gulshad Hassan AM, Additional Sessions Judge, Gujrat, in 1989, but the complainant/petitioner moved an application for transferring the case from that Court and requested that the trial be held by the learned Sessions Judge himself. This transfer application was dismissed by the learned Sessions Judge on 10-4- 1989. However, subsequently, the learned Additional Sessions Judge himself requested that the case be withdrawn from his file. Consequently, the case came up for trial before the Sessions Judge, Gujrat, but the petitioner filed Criminal Miscellaneous No,88-T of 1990 in this Court for transferring the case from the file of the Sessions Judge. This application was, however, dismissed on 13-3-1990. Subsequently, on account of a legislative change the case stood transferred to the Special Court for Suppression of Terrorist Activities, Gujranwala Division, Gujranwala. Once again the petitioner filed an application before the Home Secretary under section 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, for transferring the case to some other Special Court. The ground agitated for transferring the case was that the learned Judge asked for bribe of Rs,2,00,000 from the petitioner for convicting the accused persons. This application has been dismissed on 28-4-1994. It is this order which has been impugned in the present writ petition.
4. Learned counsel for the petitioner has contended that the petitioner did not expect justice from the Special Court, Gujranwala, therefore, in the interest of justice the Home Secretary should have transferred the case to some other Special Court of competent jurisdiction. He also contended that even this Court can transfer the case, under its inherent jurisdiction to assure the petitioner of a fair trial. He further argued that even if it is assumed that the allegations made by the petitioner against the Special Judge in his transfer application are false, this by itself furnishes sufficient ground for transferring the proceedings to some other Court, because in the natural course of human conduct it is expected that the trial Judge must have become annoyed with the petitioner on account of false accusations levelled against him in the transfer application.
5. On the other hand, learned counsel appearing on behalf of Safdar accused has submitted that the accused persons are rotting in jail for the last about 7 years because petitioner is not allowing the trial to be concluded, with ulterior motive that accused persons may remain in jail for as long as possible. To achieve this purpose his modus operandi, according to the learned counsel, is that he keeps on moving transfer applications one after the other. The case came up for trial before three different Courts but the petitioner made applications for transferring the case by levelling the allegations of dishonest conduct against all the three Courts. Our attention has been particularly invited to the fact that first he moved application before the Sessions Judge, Gujrat for transferring the case, from the file of the Additional Sessions Judge and try the case himself. But subsequently when the case came on the file of the learned Sessions Judge for trial, petitioner moved transfer application in this Court against the Sessions Judge also. In these circumstances, learned counsel has vehemently argued that the present petition has been filed mala fide with the ulterior purpose of prolonging the trial. Learned State counsel has also opposed the writ petition.
6. Under section 4-A of the Act it is the exclusive jurisdiction of the Government constituting the Special Courts to transfer a case from one Special Court to another. Therefore, the impugned order passed by the Home Secretary, Punjab, whereby he refused to transfer the case from the Special Court of Gujranwala does not suffer from error of jurisdiction. It is now well established that as order which has been passed with jurisdiction cannot be interfered in extraordinary jurisdiction of this Court, under Article 199 of the Constitution, unless it is shown that the order is arbitrary, fanciful or otherwise patently unjust. In the background of the special circumstances of this case, it cannot be held that the impugned order is patently unjust or fanciful. Even otherwise, this is not a fit case in which the discretion of this Court should be exercised. The case came up for trial before three different Courts but the petitioner levelled allegations of dishonest conduct against all the three Courts, for the purpose of transferring the case from these Courts. It is difficult to avoid the impression that prayer for transfer of the case has been motivated not for any genuine apprehension but to delay the proceedings before the trial Court. The two accused persons are in jail since 1988. They cannot be allowed to remain in jail for an indefinite period. The demands of justice require that the trial should be concluded as quickly as possible. The discretionary jurisdiction under Article 199 of the Constitution cannot be exercised in such like cases, just to satisfy the personal whims of the litigants.
7. Section 4-A 3f the 1975 Act reads as under:-- "(1) Where two or more Special Courts have jurisdiction wholly or partly in the same territorial limits and the Government constituting the Special Courts or, if one of such Special Courts has been constituted by the Federal Government, that Government is satisfied that, for the general convenience of the parties or witnesses or for the ends of justice, it is expedient to do so, such Government may, by notification in the official Gazette, direct that a case or class of cases specified in the notification shall stand transferred from one Special Court to another....... "
It is clear from the, language of this section that a case can be transferred from one Special Court to another if it is expedient to do so for the general convenience of the parties or the witnesses or for the ends of justice. In the circumstances of this case, however, neither ground is available. On the contrary, if the case is transferred to some other Special Court it will defeat the ends of justice, for it will end in further delaying the conclusion of the trial and keeping the accused persons in jail.
Unless an accused person is convicted he is presumed to be an innocent person and lie should not be allowed to be kept in jail without trial for an unnecessary long period of time. Therefore, the impugned order passed by the Home Secretary is not only an order passed with jurisdiction but it is also otherwise just and proper in the circumstances of the case.
8. Inordinate delay in prosecution of criminal cases has always been considered to be an abuse of process of law. While conceding the right of an accused person for concession of bail on the ground of delay in trial the Supreme Court of Pakistan in the case of Ahrar v. State PLD 1974 Supreme Court 224 made the following observations:- "If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of process of law, there can be no reason either in principle or in law as to why it cannot be treated as a sufficient ground for granting of bail."
' In the case of Riasat All v. Ghulam Muhammad and the State PLD 1968 Supreme Court 353 the following observation was made:-- "Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances, that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable delay in order to bring it to a close and thus, to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permitted to enlist, the will of the Court on its side directly or indirectly in prolonging the worries and harassm ent of an accused person which are inevitably caused by his protracted detention without trial."
9. In the case of State v. Qaim Ali Shah 1992 SCMR 2191, inordinate delay in prosecution of a criminal case has been considered to be an abuse of process of law/Court on account of which bail can be granted under inherent jurisdiction of the High Court, under section 561-A, Cr.P.C. Notwithstanding the ouster clause contained in section 7 of the 1975 Act (supra), where the delay is repulsive and unconscionable.
10. In the instant case, the trial has not been allowed to be concluded during the last seven years by the complainant, by moving successive application for transfer of trial from one Court to another. The delay in trial which has occurred due to the conduct of the petitioner/complainant is scandalous and shocking, and amounts to abuse of the process of Court. Therefore, question arises whether the discretionary jurisdiction of this Court under Article 199 of the Constitution can be exercised to further prolong the trial by ordering the transfer of the case to some other Special Court, to satisfy the personal designs of the petitioner. Obviously, the discretionary Constitutional jurisdiction cannot be allowed to be used for such nefarious purpose: Resultantly, we do not find any merits in this petition which is dismissed with costs.
11. Keeping in view the inordinate delay that has already occurred in the conclusion of the trial we direct that the trial shall be concluded with all despatch by giving preference to this case over all other cases, possibly within the next three months, even if the learned trial court has to take day- to-day proceedings.