' MIAN MUHAMMAD AJMAL, J.---This petition for leave to appeal is directed against the order of the High Court of Sindh, Karachi dated 30-4-2002, whereby Criminal Transfer Application No,12 of 2002 alongwith Miscellaneous Applications Nos.992 of 2002 and 1022 of 2002 were disposed of as under:-- ' "From the foregoing facts and discussion, it has been established that a suspicion or doubt is lurking in the mind of the prosecution that they are not likely to get proper justice from the Court concerned. We are satisfied that the prosecution has succeeded in establishing that the case requires to be transferred to Anti-Terrorism Court out of Karachi. Accordingly, we order transfer to Anti-Terrorism Case arising out of F.I.R. No,24 of 2002 of Police Station Artillery Maidan, Karachi against the aforesaid respondents/accused from Anti-Terrorism Court No,11, Karachi to Anti- Terrorism Court, Hyderabad presided over by Mr. Ali Ashraf Shah. The learned counsel for the parties are directed to appear before Anti-Terrorism Court, Hyderabad on 3-5-2002, who will proceed with the trial in Central Prison, Hyderabad."
2. Brief facts of the case are that the Government of Sindh through its Advocate-General moved Criminal Transfer Application No,12 of 2002 praying for transfer of the case arising out of F.I.R. No,24 of 2002 registered with Police Station Artillery Maidan, Karachi under sections 365-A/302/109, P.P.C.
Read with sections 7, 8 and 11 of the Anti-Terrorism Act 1997 (hereinafter to be called the Act) from Anti-Terrorism Court No,II, Karachi to any other Anti-Terrorism Court, inter alia, on the grounds that the accused persons have adopted threatening and intimidating behaviour and they were conducting themselves beyond the control of the Presiding Officer, such threats were being extended vocally and openly to the prosecution witnesses, Investigators and Members of the prosecution team with no action from the learned Presiding Judge when complained about by the prosecution; that the learned Presiding Judge on the very second day of the proceedings issued a notice to the Investigating Officer requiring him to show cause within three days as to why action under section 37 of the Act should not be taken against him for committing contempt of Court that the manner in which the evidence was being recorded was not proper as some vital aspects in the depositions as deposed and narrated by the prosecution witnesses were omitted; that prosecution witness Mr. Jameel Yousuf, Chief of Citizen Police Liaison Committee was subjected to excessive abusive threatening and intimidating shouts on the second day of the proceedings in presence of the Presiding Judge and on the 3rd day of the proceedings, threatening gestures were made by two accused persons amongst the four to the Advocate-General Sindh in Court which incident was instantly reported to the Presiding Judge during the proceedings and was noted by the Court but no action was taken.
3. On 29-4-2002, the Government of Sindh through its Advocate-General moved Miscellaneous Application No,1022 of 2002 in the abovesaid transfer application on the grounds.:-- "(1) ............
(2)
(3) That the matter has now been adjourned to 30-4-2002 but in the meanwhile undersigned has continued to receive threatening and abusive calls with a demand that the undersigned with his team should not proceed with the matter against the accused persons. The seriousness of the matter can be visualized by the source reports provided to the undersigned by the respective departments confirming the aspect that the prosecution team, prosecution witnesses and other associated persons are under threat to the extent that the venue would be done away with, if the proceedings are attempted to be proceeded against the accused with reference to the aforementioned criminal case. Accordingly, the venue for trial at Karachi is also under threat of attack to kill and destroy the incriminating evidence against the accused persons and, therefore, it has become all of the more necessary for the safety of the prosecution team, prosecution witnesses and for the safe administration, of the justice that the venue of trial of the aforementioned case may be ordered to be shifted to a place other than the city of the Karachi as deemed fit and proper under the circumstances of the case. Reports to this effect are undertaken to be placed before this Hon'ble Court at the time of hearing of the above case.
(4) That the sensitivity and the seriousness of the matter is of a degree which requires immediate shifting of the venue, for the protection of the prosecution team, prosecution witnesses and the investigators of the case by directing the venue for trial to be placed other than city of Karachi.
(5)
' A learned Division Bench of the Sindh High Court disposed of aforesaid applications vide its order, impugned herein, as stated in para. 1 above.
4. Learned counsel for the petitioners submitted that Government of Sindh could not be granted transfer of the case by changing the venue of the trial on its failure to discharge its Constitutional obligations of providing safety and security of life to the prosecution witnesses, investigators and members of the prosecution team and further submitted that impugned order is not sustainable as the same is based on mere presumptions and fabricated allegations which do not find any support from the record of the case.
5. Learned Advocate-General supporting the impugned order submitted that atmosphere at Karachi was highly tense due to recent bomb blast by the terrorists and thereafter the trial Court, prosecution witnesses and the prosecution team were under constant threat of terrorist elements.
He submitted that he, his prosecution team and the trial Court at Karachi were being constantly harassed by the accused, thus, keeping in view the sensitivity of the case and to ensure protection of the prosecution witnesses, investigators and the prosecution team, the learned High Court was justified to transfer the case out of Karachi. In support of his submissions, he produced certain reports of some intelligence agencies and the Government Departments. He further submitted that besides the four petitioners, who are facing trial, there are seven other accused persons who are absconding and there is every apprehension that they may create any scene of terrorism to achieve their designed objectives. He emphasized that in a charged atmosphere at Karachi, the prosecution has reasonable apprehension that trial may not be held in a fair and impartial manner.
6. Section 526, Cr.P.C. Empowers the High Court to transfer the case from one Court to another or to try itself on the grounds that fair trial cannot be held in its subordinate Court or for convenience of the parties and witnesses or for the ends of justice, subsection (1) whereof reads as under:-- "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 had 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 is expedient for the ends of justice, or is required by any provisions 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) that 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.
' Section 28 of the Act provides that the High Court for the convenience or safety of the witnesses or that of the accused may transfer any case from one Anti-Terrorism Court to another within or outside the area, in the interest of justice.
7. Both the aforesaid sections are sufficiently wide and comprehensive which entitled any party to move the High Court for the transfer to the case from one Court to another on the grounds mentioned above. The grounds which prevailed with the learned High Court in transferring the case to Anti-Terrorism Court at Hyderabad were that atmosphere at Karachi was not congenial for trial, the prosecution team and witnesses were under constant threat and the apprehension of the prosecution that it may not get proper justice from the Court concerned, whereas atmosphere at Hyderabad was normal and in case of any law and order situation it was comparatively easy to control the same there. In view of section 526, Cr.P.C. Read with section 28 of the Act the learned High Court was competent and empowered to transfer any case from one Anti-Terrorism Court to another within or outside the area of Karachi for the protection and safety of the witnesses and that of the accused. The prosecution also entertained reasonable apprehensions that the Court concerned was not fairly and impartially conducting in the matter, hence sufficient grounds were made out for the transfer of the case out of Karachi. In Muhammad Nawaz v. Ghulam Kadir and 3 others (PLD 1973 SC 327), this Court after considering sufficient case-law on the subject, observed as under:-- ' "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 Cam would not be able to act fairly and impartially in the matter. It is of 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 regarded 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 excepted to have."
8. Recently, in another case, reported as Khawar Saleem v. The State (2001 SCM R 905) it has been held as follows:- ' "No allegation had been made against the person of the learned Presiding Officer of the Court in the transfer application and the transfer of the case was sought on the ground that the manner in which the proceedings were taken and orders passed, a person could legitimately entertain an apprehension that he would not be treated fairly. Without expressing any opinion as to whether in such circumstances, the petitioner was justified in entertaining an apprehension that fair trial shall not take place keeping in view over all circumstances of the case. We feel persuaded to hold that it is expedient for the ends of justice that the case is transferred from the said Court to another Court under section 526(1)(e) of the Code of Criminal Procedure."
9. We are also of the opinion that the learned High Court was justified to transfer the case from Anti-Terrorism Court at Karachi to Anti-Terrorism Court at Hyderabad so that trial may be held in a more congenial atmosphere and tension-free situation. Apprehensions about safety of the witnesses and prosecution team and with regard to holding of a fair trial for even dispensation of justice were sufficient grounds for transfer of the case from one Court to another. We do not find any legal infirmity in the impugned order, consequently this petition is dismissed and .