NASIM SUGHRA Versus GHULAM HUSSAIN
This petition has been maintained by Mst. Nasim Sughra to seek transfer of the proceedings of an application under Section 476, Cr.P.C. filed by the respondent, her ex husband, for her being proceeded against for the offence of perjury under Section 193, P.P.C. allegedly committed by her in the course of a matrimonial suit pending in the Guardians/ Family Court at Faisalabad which has since been transferred to the Guardians/ Family Court, Jhelum by the order passed in T.A. No.501/C 86. Her plea is that the petition sought to be transferred should be tried alongwith the main case and deserves to be sent there for the very same considerations which had led to the transfer of the suit itself from Faisalabad to Jhelum.
2. Learned counsel for the respondent opposes the plea of the petitioner with the submission that such proceeding is not capable on being transferred under Section 25 A of the Family Courts Act which is limited in its application to the proceedings falling under that Act He further maintains that although the submission made by the applicant seems to create the impression of being reasonable, yet, it is fraught with the danger of the relevant proceeding being itself rendered infructuous in result of transfer because Section 195 (1)(b) of the Cr.P.C. contemplates that the cognizance of a complaint relating to an offence under Section 193 P.P.C. committed in a court can be taken only if it is either by the Court before whom the offence was committed or by a Court to whom such Court is subordinate. In his view, transferee Court would not be a Court competent to maintain a complaint against the petitioner on the basis of the application filed by the respondent. Learned counsel while conceding that he has not been able to lay his hand on any direct authority in support of his submission, has invited reference to Aqil Ahmad v. A Rgur (1970 P Cr.LJ 535), Gul Rauf Khan and another v. Alapatagin and another (P L D 1976 Pesh. 64) Muhammad lqbal v. The State (1985 M L D 1396).
3. Except for the aforementioned apprehension, learned counsel for the respondent does not oppose the prayer for transfer on merits.
4. So far as the aforenoted contention of the learned counsel for the respondent with regard to maintainability of the plea for transfer goes, on principle, I do not see why a Court becoming seized of a suit upon transfer may not be considered a Court competent to deal with a petition maintained under Section 476 of the Cr.P.C. in the same suit with regard to an offence under Section 193, P.P.C alleged to have been committed long before the transfer because within the terminology of Section 195 (1)(b) of the Cr. P.C. such alleged offence would remain an offence "committed in, or in relation to, any proceeding in any Court" and by virtue of the transfer order, the subsequent Court, stepping into the shoes of the earlier Court to take cognizance of the principal proceeding, would still be entitled to be regarded such Court' within the contemplation of the last portion of clause (b) of subsection (1) of Section 195 of the Cr.P.C. Any other construction will lead to anamolous results. Contention of the learned counsel is not sustainable and hence fails.
5. Turning now to the other contention of the learned counsel, suffice it to point out that mere misquotation of law cannot defeat any proceeding because it is the Court's own duty to apply the appropriate law and although it is correct that the petition in hand would not, in its terms, fall within the scope of Section 25 A of the Family Courts Act, 1964, yet, the considerations governing it would not be any different than those governing the transfer of matrimonial cases whereof the foremost is the convenience of a lady litigant and since this proceeding is an outcome of a matrimonial case, therefore, the same yardstick has to apply hereto as well. Manifestly enough, the petitioner lady should not be compelled to attend to the litigation at two different stations, whereof one is a place of residence of her opponent. Rather, the requirement of prudence is that ladies should not, as far as possible, be forced to go out of station to attend in the matrimonial litigations. Hence, it is clear that the proceeding under reference should also be tried by the same Court which, for the time being, is seized of the suit. Therefore, in exercise of the power under Section 526, Cr P.C., relevant proceeding is withdrawn from the Court at Faisalabad and is entrusted to the Guardians Family Court, Jhelum where the suit between the parties is pending so that this proceeding may also be dealt with according to law in that Court, preferably on the same date or dates as the principal litigation is taken up by that Court.
6. Learned Judge at Faisalabad will forthwith send the relevant file directly to the transferee Judge at Jhelum who will fix a date according to his convenience for the matter being considered by him in accordance with the law, in the manner indicated above.
7. This petition is accordingly allowed.
M.B.A/N-92/L Petition allowed.