' MUHAMMAD ROSHAN ESSANI, J.--- By this Criminal Transfer Application under section 526, Cr.P.C.
Read with section 4(A) of Suppression of Terrorist Activities (Special Courts) Act, 1975, the applicant Lutufullah has sought the following relief:-- "It is, therefore, prayed that this Honorable Court may be pleased to withdraw the above case from the file of respondent No,4, and transfer the same to any other S.T.A. Court for disposal according to law."
2. The facts in brief as disclosed in the application are that applicant is complainant in Crime No,74 of 1998, lodged on 13-8-1998 at Police Station Moro, District Nawabshah, under section 302, etc. P.P.C. Against the accused named therein. After usual investigation the accused was initially sent up before the learned Judge, Anti-Terrorism Court, Sukkur and Larkana Divisions at Sukkur, who is respondent No,3 herein.
3. Due to lack of jurisdiction the case was 'sent back to the learned Court of Suppression of Terrorist Activities/Sessions Judge, Naushero Feroze, who is respondent No,4 herein and the same in sub judice there.
4. It is alleged that from the very start the conduct of the learned trial Judge was harsh and hostile towards the applicant as he was openly favouring the accused party who belonged to Zardari tribe and with the patronage of their tribal heads and being moneyed and powerful persons they were exerting influence upon the learned trial Judge. It is further alleged that the applicant is no match for the accused party.
5. It is alleged that applicant and his witnesses found that the learned trial Judge was giving undue latitude to the accused by permitting them to sit on chair in presence of applicant. It was urged that thus, it could be deduced that the learned trial Judge was hostile to the applicant.
6. It is also alleged that the learned trial Judge was hurriedly disposing of the applications for bail and those of release of property in a haphazard manner and that he was not paying any heed to the submissions of applicant party. From his gestures and signs it appears that he was favourably inclined towards the accused party. He was not acting in accordance with law while proceeding, with the case and his attitude was not fair, impartial and transparent. If the case is not withdrawn he will not get fair justice at the hands of trial Judge, i,e, respondent No,4.
7. Prior to present transfer application the applicant filed another transfer application No,32 of 1999 in the present case but it was withdrawn by him. The order of this Court, dated 24-9-1999 is reproduced hereinbelow in extenso:-- "The learned counsel for the applicant does not press this Criminal Transfer Application and withdraws the same with permissions to file a fresh application on fresh grounds.
'Accordingly, Criminal Transfer Application No,32 of 1999 is dismissed as withdrawn. The applicant can move a fresh Transfer Application, if he so chooses."
8. The comments were called from the learned Judge of the trial Court. He has denied therein that his conduct was harsh and hostile towards the applicant and/or that any influence was exerted upon him by the accused. The learned Judge has also shown unawareness with regard to status of the parties to the proceedings. He has further stated in his comments that allegations levelled in the present application were false and fabricated one and have been levelled in order to get the case transferred. According to him the case was called on each and every date of hearing and it was conducted/proceeded in open Court in presence of the parties and their counsel.
9. It is stated in the comments that one accused, namely, Illahi Bux filed application for grant of bail on 10-5-1999, when the notice was ordered by the link Judge for hearing on 13-5-1999. The hearing of the bail application was postponed on the applications of applicant (complainant) on 18-5- 1999, 2-6-1999, 9-6-1999, 15-9-1999, 28-6-1999 and 20-7-1999.
10. On 29-7-1999 the learned counsel for the applicant (complainant) moved application for adjournment on the ground that applicant was moving transfer application. The learned counsel for the accused opposed the request of applicant (complainant). However, the learned trial Judge adjourned, the case for 10-8-1999 with direction to produce copy of order staying of proceedings from the High Court. Thereafter, the present transfer application was filed.
11. On 13-10-1999, applicant (complainant) produced copy of transfer application alongwith adjournment application before the learned trial Court. After going through the contents of the said application, the Advocate for applicant filed statement and withdrew his Vakalatnama.
12. The contents of the statement of learned counsel for the applicant (complainant) are reproduced herein under in extenso for the sake of ready reference:-- Statement ' I, Ghulam Shabbir D. Memon, Advocate, Noushero Feroze, state that I am Advocate for complainant in the above case. I have gone through the contents of transfer application filed by the complainant in the above case and also I have also gone through the news item published in Daily Dawn and Daily Jang, dated 13-10-1999.
' The contents of transfer application are totally false and without any foundation. Sometime the complainant himself has been submitting applications for adjournment of the case and sometime under his instruction I have moved adjournment applications. The behaviour of Honourable Judge has never been harsh to the complainant and it has never been observed during the hearing of the case to suspect that the complainant would not get justice.
' I, under these circumstances, do hereby withdraw my Vakalatnama filed on behalf of complainant in the above case and I have informed the complainant to engage another lawyer for contesting the case.
(Sd.) Ghulam Shabbir D. Memon, Advocate for Complainant.
13. The pews item with regard to transfer application containing the allegations against learned trial Judge were also published in Daily "Jang" and "Dawn" dated 13-10-1999.
14. Since the allegations made in the transfer application and published in newspapers were derogatory and contemptuous to the Court, the District Bar Association, Naushero Feroze and Bar Association Moro convened a meeting in which the conduct of the reporting agencies of the said newspapers was condemned and following resolutions were passed which are self-explanatory:-- "District Bar Association, Naushero Feroze Resolution ' An urgent meeting was called, and same was presided by Mr. Ghous Bux Luharani Baloch, Advocate and President District Bar Association in District Bar Room on 16-10-1999 at 12-00 noon in respect of news items appeared in facing daily Dawn and Jang dated 13-10-1999.
' The meeting was attended by Honourable Members of District Bar Association and General Secretary Arbab Ali Chandio read over the publication before House. The House unanimously condemned the false news and fabricated allegations made by the complainants Ghulam Mustafa Abbasi and Lutufullah Abbasi against Special Judge (S.T.A.) Noushero Feroze, Mr. S. Ali Muhammad Rizvi, who is very honest. Pious, God-fearing and good reputed Judge of judiciary. The Honourable member of District Bar Association, Noushero Feroze, Mr. Ghulam Shabbir D. Memon, Advocate for complainants has withdrawn his power under the protest as complainant made false and baseless allegations against the Honourable Judge.
Dated 16-10-1999. (Sd.) Arbab Ali Chandio, General Secretary, District Bar Association.
' C.C. To:
(1) Honourable Chief Justice, High Court of Sindh, Karachi.
(2) Registrar, High Court of Sindh, Karachi.
(3) M.I.T., Karachi.
(4) Sindh Bar Council, Annexe Building, High Court of Sindh, Karachi.
Resolution ' Today this 16th day of October, 1999, a General Body meeting of Moro Bar Association was held in Bar Room Moro for considering news published in daily Dawn and daily Jang, dated 13-10-1999 against District and Sessions Judge, Naushero Feroze.
' All members of Moro Bar on coming to know about the above news were seriously shocked. In fact learned Sessions judge, Naushero Feroze, Mr. Ali Muhammad Rizvi, who has been working as District and Sessions Judge, Naushero Feroze since about one year, the members of Moro Bar have found him to be very honest, efficient, hard-working, impartial and man of integrity and he is a Judge in real sense.
' We, the members of Moro Bar, therefore, unanimously resolve and condemn the news published in daily Dawn and Jang on 13-10-1999 against the District and Sessions Judge, Naushero Feroze.
(Sd.) President, Moro Bar Association ' Copy to:
(1) Honourable Chief Justice, High Court of Sindh.
(2) Honourable District and Sessions Judge, Naushero Feroze.
(3) Editor, daily Dawn.
(4) Editor, daily Jang.
(Sd.) President, Moro Bar Association."
15. The learned trial Judge has further stated that if this Court thought fit to do so the case may be withdrawn from his file and it may be transferred to some other Court.
16. The applicant (complainant) filed affidavit-in-rejoinder wherein he has denied the adverse allegations made against him. He reiterated the contents of transfer application and he has further averred that the resolutions are managed and manoeuvred one.
17. We have heard Mr. Ghulam Qadir Jatoi, learned counsel for the applicant (complainant). It was contended by him that "mere apprehension" in the mind of a party that he will not get justice is sufficient to transfer the case, moreover the case may be transferred from District Naushero Feroze to District Dadu as it will be convenient to the applicant. He placed reliance on Muhammad Nawaz v. Ghulam Qadir and others PLD 1973 SC 327.
18. Syed Jalil Ahmad Hashmi, learned Assistant Advocate-General, opposed the plea of transfer and he stated that no ground for transfer was made out. We have also perused the material placed on record.
19. Before adverting to the facts and circumstances of the present matter, it will be pertinent to reproduce herein under the preamble of Suppression of Terrorist Activities (Special Courts) Act, 1975 for the sake of convenience:-- "Preamble.--- Whereas it is expedient to make special provisions for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offence committed in furtherance of or in connection with such acts."
20. The plain reading of the preamble to the Act shows that the intention of the Legislature in promulgating this Act was suppressing the acts of sabotage, subversion, terrorism and to provide for "speedy trial of offence" committed in furtherance or in connection with such acts. The section 5-A(i) of the Act lays down that Special Court shall proceed with the trial from day to day and shall decide the case speedily and under section 5-A(2) a Special Court shall not adjourn any trial for any purpose, unless such adjournment is in its opinion necessary in the interest of justice and no adjournment shall be granted for more than two days.
21. Now, I will advert to the facts of the present case. The allegation in the application for transfer that the learned trial Judge is hurriedly disposing of the applications for bail and those for release of property in a haphazard manner and that he was not giving due weight to the submissions of the applicant (complainant), is misconceived and it is not borne out from the record. The applicant sought eight adjournments in the bail application. He got delayed the hearing of bail application for about more than five months. Justice delayed is justice denied. It appears that applicant himself is party to delay and he wants to frustrate the very intention and purpose of expeditious disposal of the case for which the Suppression of Terrorist Activities Act, 1975, was promulgated.
While granting adjournments for hearing even bail application the Court showed undue leniency/latitude to the applicant, contrary to the provisions of the Act referred to hereinabove.
22. Further perusal of the record showed that false and bald allegations were levelled against the Presiding Officer of the trial Court. It appears that in order to over awe and mould the Court for ulterior motives the applicant made these allegations which were not substantiated by way of any documentary or other evidence/material. The allegations appear to have been made for the sake of allegations.
23. The plea of the applicant that resolutions passed by Bar Associations were managed and manoevred is also a fallacious one. The Bar and Bench are two wheels of same chariot. When Bar found that judiciary was being maligned bar stepped in to save and protect the honour and dignity of the Court and its Presiding Officers. In the circumstances, it cannot be termed as a managed and manoeuvred affair.
24. The contention of the learned counsel that mere apprehension in the mind of the party that he will not get justice is sufficient for the transfer of case is devoid of force. It will be pertinent to reproduce herein under the relevant dictum of the Honourable Supreme Court laid down in the case of Muhammad Nawaz v. Ghulam Qadir and others PLD 1973 SC 327, which is at page 331. Even learned counsel for the applicant has put great emphasis on it:-- "... We fully endorse the summing up of these principles by the High Court in the case of Rahim Baldish mentioned above, namely, that the transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court is a paramount importance that parties arraigned before Courts should have confidence in their impartiality. It is one of the important duties of a High Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him. What is a reasonable apprehension must be decided in each case with reference to the incidents and the, surrounding circumstances, and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regard as unfavourable by the applicant, which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as a reasonable man might justifiably be expected to have."
25. The careful reading of the above observations of apex Court reveals that the transfer of a case from one Court to another is only justified when there is a reasonable apprehension in the mind of a party that Court would not act fairly in imparting justice. In that context, Court has to cautiously assess whether apprehension being expressed is readily such as a reasonable man might justifiably be expected to have looking to the peculiar facts and circumstances of each case.
26. In the case in hand, it is not pointed out that what wrong or improper order in law was passed by the learned Sessions Judge to the detriment of the applicant. On the contrary, he granted adjournments at his instances very generously. Even otherwise, if an order is passed against a party is a wrong and improper order and in violation of law, it is not always a valid ground for the transfer of a case, unless it is shown that it was a biased order in the attending circumstances of a particular case and that it must be shown with clarity and not in ambiguous manner.
27. In the case of Talib Hussain etc. v. The State 1987 PCr.LJ 1319, it was observed that case should not be transferred at the whim of a party who moves application before Additional Sessions Judge, seized with trial of case expressing no confidence in him and desiring transfer of case from his Court. This would set up an unhealthy precedent and would tantamount to conferring powers of transfer upon parties beside defeating purpose of section 526, Cr.P.C., if trial Courts are allowed to transfer case at asking of party arrayed before them. The application in the case under sections 302, 148 and 149, P.P.C. Was dismissed on the ground that it did not disclose any ground to warrant transfer of case.
28. In the case of Muhammad Malik v. Muhammad Farooq and 2 others 1993 PCr.LJ 1362, it was observed that law requires transfer of a case if reasonable apprehension of not getting a fair trial at the hands of trial Court exists in the litigants mind. The word "reasonable" denotes that the material should be of such a character, which would satisfy the objective test that a person after going through such material must come to the conclusion that the apprehension is well-founded.
29. The contention that the case may be transferred from one District to another District, i,e, from Naushero Feroze to Dadu as it will be convenient to the applicant (complainant) or his counsel is not sufficient. It does not justify transfer of case on this ground.
30. The case relates to District Naushero Feroze. Applicant (complainant) party is resident of District Naushero Feroze. The accused party is also resident of District Naushero Feroze. The Courts have preferably to see the convenience of the accused in comparison to the convenience of complainant or his counsel. In fact the convenience of both the parties has to be taken into consideration.
31. From the conduct of applicant, it prima facie, appears that applicant seeks transfer of case from one Sessions Division to another Sessions Division only to prolong the proceedings.
32. In the case of Muhammad Tariq Anis Pirzada v. The State NLR 1993 Cr.LJ 5, it was observed that the transfer of a case from one Sessions Division to another Sessions Division would delay disposal of the case which was not in interest of justice, therefore, plea of prayer for transfer was rejected.
33. Thus, the self-procured mistrust and expression of no confidence in Court, which is based on general and vague allegations, is not sufficient for the transfer of case.
34. Consequently, the application is dismissed. The trial Court is directed to dispose of the case as early as possible, keeping in view the intention of the Legislature in promulgating Suppression of Terrorist Activities (Special Courts) Act, 1975.