This is application for transfer of a case under section 406/120-B/109/J4, P. P. C. Pending in the Court of E. A. C. And Magistrate 1st Class, Quetta. The learned counsel for the petitioners has raised the following conten--tions
(i) that the respondent No. 2 wields lot of influence and the atmosphere at Quetta is such that the petitioners do complete justice, if the case is tried at Quetta of this allegation, the learned counsel has cited respect of the withdrawal of surety which has the subject-matter of. Criminal Miscellaneous Application of 1967, decided by this Court (Karachi on 13th March 1967. My learned brother Feroze Nana Ghulamally, J. (as he then was) was pleased to make the following observation: - "The next objection is that the application has been based on a mere apprehension. No orders have in fact been passed for the cancellation of the bond of the surety, nor indeed is there any indication so far that the surety has in fact applied for withdrawal from the security bond. If such a contingency arises, and as the offence alleged against the applicant is prima facie bailable, I presume that the trial Court before cancelling the bond of the surety, will issue notice to the applicant to enable him to furnish fresh surety, since on the same basis the application for bail was already granted earlier on 16-7-66."
(ii) that all the three accused-petitioners belong to Sukkur and they have to come from Sukkur to attend the Court at Quetta. On the prosecution side, list of 16 witnesses was given by the complainant. Two of them have already been examined. Three of them belong to Sukkur and one to Karachi. Out of the remaining 10 witnesses, only one is such a person who does not belong to the concern of the complainant. Therefore, according to the learned counsel, it, is in the interest of justice and convenience that the case should either he tried at Sukkur or at a place other than Quetta.
(iii) that the Criminal Courts at Quetta have no jurisdiction to try the petitioners.
2. I have heard the learned counsel for respondent No. 2, the complainant, who has vehemently opposed this application. Mr. Memon, who represents the State, has opposed the transfer of the case to Sukkur because, according to him, it will give an extra advantage to the accused- petitioners. According to him, it will be appropriate if the case is transferred to a place where it will be convenient for both the parties to prosecute the trial. He suggests that Sibi is the proper place where there is a Magistrate 1st Class.
3. The learned counsel for the complainant has raised a preliminary objection that the application for transfer is no supported by an affidavit. The material allegations made in this application are also partly the basis of the application for quashment of proceedings which I have disposed of today by a separate order; and these allegations are supported by an affidavit in that petition. I do not think it was necessary for the petitioners to have repeated the same affidavit in support of this application I treat that very affidavit with Criminal Miscellaneous No. 22 of 1967 as an affidavit for the purpose of this petition as well.
4. The learned counsel next contended that the allegation in respect of the influence of respondent No. 2 at Quetta is vague and, in any case, is not supported by any proof. To my mind, the allegation in respect of influence is not vague. It is not denied that the Baluchistan Taxtile Mills is a big concern at Quetta and the complainant is the General Manager of that big concern. It is not difficult to imagine that the complainant is an influential party at Quetta. So far as the proof in respect of specific allegation on the question of surety is concerned, it is not necessary that the same should be of a type which is needed for criminal trial for the purpose of conviction or acquittal. If the proof is such which can give a reasonable apprehension in the mind of a party or the Court that the accused persons may not be able to get justice in a certain case, that is sufficient for the purpose of disposal of an application for transfer under section 526, Cr. P. C. The allegation about the surety is not being made in this transfer application for the first time. It was also made, about two years ago, in an earlier apple--cation. The facts as contained in the order of this Court, referred to in the earlier part of the order show that the peti--tioners had bona fide apprehensions in respect of the surety; that is why they made an effort to furnish the surety at Sukkur; but due to legal grounds, the High Court did not accept this request of the petitioners.
However, in: the portion of the order quoted above, a clear observation is made that if and when the surety withdraws and the Magistrate passes an. Order and gives a notice to the petitioners, they may then have a grievance to move in the matter. It is not denied that the surety, in fact, withdrew by an application to the Magistrate and on that the learned Magistrate sent a notice to the petitioners that they should furnish a fresh surety. In these circumstances, I think the petitioners have succeeded in proving that they have reasonable apprehension that they will not get justice at Quetta.
5. The learned counsel for the complainant has also stressed the point that it is not only the convenience of the accused persons but also of the witnesses which his to be kept in mind, if the case is to be transferred on the ground of the convenience of the parties alone. It is true that the number of witnesses from Quetta is more than those from Sukkur and Karachi; but if the number of witnesses front outside Quetta and those who have already been examined is added to the number of the accused persons, then the equation is not very unfavourable to the accused- petitioners. Not only this, except only one witness, all the remaining witnesses, admittedly, belong to the 'concern of the complainant. If that is so, it is not very inconvenient for the complainant to produce those very witnesses at a place out of the District of Quetta.
The learned counsel then contended that by producing those witnesses at a place other than Quetta, the complainant will have to incur an unnecessary expense. In this connection it will suffice to remark that he himself chose to file a complaint instead of making a report to the police. In the latter case, he may not have to be burdened by the expenses. Therefore, there is no force in this objection. He has also contended that the work of the mill will suffer if the witnesses go out of Quetta for appearance in Court. The work of the mill will, in any case, suffer when the witnesses go to the Court for making statements. Sometimes they have to wait for the whole and they are trot examined. This is one instance in which the work of the mill must have suffered. Therefore, it does not make any difference whether the case is tried at Quetta or out of Quetta, so far as this part of the contention of the learned counsel is concerned. -
6. Keeping in view the convenience of both the parties, the suggestion made by the learned counsel for the State is most appropriate. Sibi is stated to be at about 100 miles from Quetta while it is about 150 miles from Sukkur. On the basis of the discussion of the above two grounds, I find it a fit case for transfer out of the District of Quetta. In this view of the matter, it is not necessary to examine the third point, i.e. The criminal Courts at Quetta have no jurisdiction to try the case, Therefore, I order that the case pending in the Court of E. A. C. And Magistrate Ist Class at Quetta on the complaint of the respondent No. 2 should be transferred to a Magistrate of competent jurisdiction at Sibi. And if there is no other Magistrate of competent jurisdiction to try the case at Sibi, is should be tried either by the District Magistrate or by the Additional District Magis--trate, at the discretion of the District Magistrate.