1. This application under section 526, Cr.P.C. Has been moved by the applicants who are accused in Sessions Case No,58 of 1993, re: State v. Gul Muhammad and others, with the prayer that the said Sessions case be transferred from the file of learned Sessions Judge, Nawabshah to Hyderabad or in the alternative to District Judge, Dadu.
2. The main contention of the learned counsel for the applicants is that the applicants/accused who are facing trial before the Sessions Judge, Nawabshah in the abovementioned Sessions case apprehended danger to their lives at the hands of the complainant side who assemble at Nawabshah duly armed with deadly weapons on the dates of hearings in the said case. Learned counsel has stated that the accused have moved an application before learned Sessions Judge on 17-1-2000 intimating Court that complainant alongwith others named therein had attempted to interrupt them on the way while they were on their going to attend the Court in the aforementioned case and that on many occasions before also the complainant and his companions had issued threats of dire consequences to them. Learned counsel further stated that on 31-1-2000 the applicant/accused Gul Muhammad had repeated similar application before the trial Court and had also informed the trial Court about the pendency of this application with a request to stay the proceedings but the learned trial Court brushed aside this request and proceeded with the trial. He, therefore, prayed that in view of the above circumstances, his prayer, abovementioned be granted.
3. He has placed reliance on the case-law reported as Syed Jaffer Raza Naqvi v. The State 1996 M LD 606, Muhammad Arshad v. The State 1997 SCM R 949 and Ghulam Hyder v. Muhammad Sadiq and another PLD 1998 Kar.
4. 126.
5. Learned counsel for respondent No,1 has contended that the accused are habitual of making such kind of applications and cited an instance that previously also at their request the abovementioned case was transferred from the file of Ilnd Additional Sessions Judge, Nawabshah to the file of Sessions Judge, Nawabshah vide order, dated 2-2-1997 passed by this Court on different grounds. He argued that the complainant is a poor and powerless person who had only two sons and were allegedly killed by the accused/applicants and it is on account of these murders that they are facing trial in the abovementioned Sessions case. He contended that both the parties are residents of neighbouring villages and reach Nawabshah from there. He visualized that the apprehension of the applicants are false and they would have to meet at some point even if the case is transferred to Sessions Court, Hyderabad or to Sessions Court Dadu. According to him, the applicants/ accused have made a prayer for transfer of this application on concocted grounds in order to protract the matter since the prosecution witnesses have been examined and that the matter has been fixed for recording statements of accused on 18-2-2000. He submits that neither the complainant himself nor anybody on his behalf had advanced threats to the applicants/accused.
6. Learned State Counsel opposed the prayer of the applicants. He stated that the request of the applicants is mala fide and that no prima facie case has been made out by the applicants. He shared the views of learned counsel for respondent No,1 and stated that even if the case is transferred as prayed, the parties would have to meet at some point while on their way to trial Court and placed reliance on the case-law reported as Mst. Sharam Khatoon alias Hakim Zadi v.
7. The State and 7 others 1970 SCM R 536.
8. During the course of arguments, learned counsel for the applicants did not controvert the fact that both the parties are residents of the same. Surroundings. He also did not controvert the fact that the complainant had only two sons who have been allegedly killed for whom the applicants are facing trial in the above case. It is also pertinent to note that no specific date, time and place has been mentioned on which the complainant or any of his companion advanced threats to the applicants.
9. It is evident that the Sessions case is pending trial against the applicant in which parties are attending the Court at Nawabshah since 1993. The trial has reached the stage of recording statements of accused. It, however, looks uncanny that the applicants ventilated their apprehensions for the first time in an application, dated 17-1-2000 moved after seven long years without specifically mentioning any instance when prosecution case was near to completion.
10. Again, very soon on 31-1-2000 another application was moved by applicant Gul Muhammad before trial Court with same reasons, but, strangely, with an inharmonious prayer to stop the proceedings of trial on the ground that the applicants had moved present transfer application before this Court and that it was pending. The trial Court did not accede to this request and examined two P.Ws. In attendance on that day. Today, also when this application has been heard nothing is said to allege that the complainant or his companions, if any, thereafter even made an attempt to make the situation tense. Apparently, the accused seem to have safely reached back their destination on all dates of hearings. No physical harm is alleged to have been caused to the applicants for the past 7/8 years during their trial in Courts at Nawabshah. The grounds raised for transfer of the case, therefore, do not seem to be well-founded. Another aspect which draws attention is undue request of the applicants made to the trial Court to stop proceedings after filing of this transfer application suggesting that the applicants did make a move to stop proceedings in trial of case, before the same Judge. This move on the part of applicants also does not appear without any meaning.
11. I have also studied the case-law referred to by learned counsel for the applicants. In case of Syed Jaffer Raza Naqvi v. The State 1996 M LD 606 transfer of the case was allowed on the ground that the applicant in said case had apprehension that he would not get fair trial. In the instant case, the grounds raised are totally different, therefore, the cited case is of no help to the present applicants.
12. Case of Muhammad Arshad v. The State 1997 SCM R 949 is also of no assistance to the applicants since in that case impartiality of the Judge conducting the trial was disputed and the counsel appearing for the defence was being allegedly encircled by a large number of other Advocates, for which it was observed that no incident of gagging the learned counsel for defence thereby rendering him unable to perform his duties requiring interference by the Court was cited. In case of Ghulam Hyder v. Muhammad Sadiq and another PLD 1998 Kar. 126 the crime was committed in the year 1997 and parties were alleged to be inimical to each other and on a date of hearing, the complainant had come alongwith witness and made the atmosphere so tense that quarrel was anticipated. In allowing the transfer in the said case, the convenience of the parties was also considered and even then the case was transferred from one Additional Sessions Judge to another Additional Sessions Judge sitting at different places within same District. In the instant case, the circumstances are totally different.
13. In view of the above facts and circumstances, this transfer application was dismissed by a short order, dated 14-2-2000 and these are the reasons for the same.