' I have heard this case which pertains to the alleged murder of Mir Murtaza Bhutto. Mr. Azizullah Shaikh points out that the reason assigned by the learned Sessions Judge Karachi, South, in his report for seeking transfer of the proceedings pending before him is neither in accordance with law nor justified on facts. Such reason, it may be recalled, is that the learned Sessions Judge had previously declined to proceed with the matters in which Syed Abdullah Shah, a former Chief Minister, or Senator Asif Ali Zardari were named as accused or in any other way involved and that transpired because of certain personal reservations. Because, both the said individuals are accused in the instant proceedings, the learned Sessions Judge has opted for the same course and has submitted due report for transfer of the case from his files. It seems to me that if for any reason, which a Judge need not disclose, the Judge does not want to judicially proceed with a case, he can, unless mala fides be manifest, neither be compelled to disclose the reason nor to proceed with the case in spite of his expressed refrain from doing so.
' As to the legal implication, the matter is squarely covered by section 526(1)(a) Cr.P.C., postulating a situation where a fair and impartial inquiry or a trial cannot be held in any criminal Court subordinate to the High Court or by section 526(1)(c), a scenario where the order sought is expedient for the ends of justice or is required by any provision of the Code. Section 526, Cr.P.C. So far as relevant is reproduced:-- "526. High Court may transfer case or itself try it.---(1) Whenever it is made to appear to the High Court--
(a) that a fair and impartial inquiry or trial cannot be held in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to the general convenience of the parties or witnesses, or
(e) that such an order expedient for the ends of justice, or is required by any provision of this Code: ' It may order--
(i) that any offence be inquired into or tried by any Court not empowered under sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any, other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case or appeal be transferred to and tried before itself; or (iv) that an accused person be sent for trial to itself or to a Court of Session.
(3) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative.
' The power, under section 526(3) Cr.P.C., vesting in High Court, is to be exercised either on the report of the Court concerned or on the application of a party interested or on its own initiative. In the instant case, due report has been submitted by the learned Sessions Judge, Indeed, he himself was fully competent to transfer the case but for the fact that part of the evidence stood already recorded, requiring the report in question to be submitted here.
' At this stage, Mr. Azizullah Shaikh has pointed out that if the transfer has to be made, such may be made to the senior most Sessions Judge functioning in the province, because the matter involves a degree of sensitivity, besides some intricacies. There are a number of Sessions Judges appointed and functioning in the province. Except for promotions, where fitness also counts and perhaps in matters of protocol all Sessions Judges are equal and no pick and choose can be made merely on grounds of seniority, particularly so when with seniority the element of fitness cannot be eliminated.
At any event, when Judges of the Provincial Judiciary are posted in the metropolis of Karachi, a good deal of care is taken to ensure that non-controversial and competent judges are nominated but that does not in any way imply that the other Judges are less competent or controversial. Add to that the fact that a large number of witnesses are involved, many of them being connected with the city and besides the incident itself also occurred here. All these are matters of convenience and cannot be ignored. The trial, therefore, has to be at Karachi unless there be good reason for deviating.
' Office, in the circumstances narrated, has submitted the names of the following Sessions Judges, who are available to be appointed:--
1. Mr. Ruhullah Chagla Joshi, District Judge, Karachi Central.
2. Mr. S. Yamin Yousuf, District Judge, Malin
3. Miss Yasmin Abbasi, District Judge, Karachi West.
Seeing all pros and cons of this case and entirely in the interest of justice, I would appoint Ms. Yasmin Abbasi, District and Sessions Judge, Karachi West, to deal with this matter and transfer the same, accordingly, to her. On my query, it has been revealed that while there are 223 witnesses in the case, only two have so far been examined. This is pathetic. Mr. Ilyas Khan for the State, clarifying the position, says that such achievement, if achievement it may be called, in two years' time, has resulted for two reasons, firstly, because of the late submission of challan and secondly, on account of prolonged examination of the witnesses, when reproduced. As against this, the learned counsel for the accused, or at least one of them, has pointed out that the delay also occurred because the learned State Counsel expressed his regret for appearance in the case other than on Saturdays. In the circumstances, I would require the transferee Court to proceed with the case from day to day and, as far as practicable, conclude the hearing within six months' time, reporting every fortnight about the progress of the case. Besides, the learned Presiding Judge would ensure that no unnecessary question is allowed to be asked or repeated by any of the counsel during the course of cross-examination or re-examination or even otherwise except, when clearly permitted by law.
In this way, prolonged examination of witnesses can possibly be fore-stalled.
' Order as above.
Case transferred.