UMAR FAROOQ Versus STATE

ORDER

1. Applicant Umar Farooq s/o Malik Aman is facing trial in the Court of learned Sessions Judge West Karachi alongwith co‑accused Malik Aman and Umar Farooq under Section 302/307/34, P.P.C. By this application, transfer of the case is sought from the Court of the Sessions Judge, West Karachi to any other Court. Arguments of Mr. MA. Wahab Khan, learned counsel for the applicant, were heard. Mr. K.M. Nadeem, Addl. A.G. was also heard.

2. An earlier Criminal Transfer Application No.33/91 filed by Malik Aman and petitioner Umar Farooq was dismissed by this Court by order dated 18‑6‑1991. The two applicants filed a Petition for Leave to Appeal before the Supreme Court and, by order dated 27‑11‑1991, it was dismissed. Learned counsel for the applicant in the present Transfer Application has referred to certain observations made by the Supreme Court in the order dismissing the previous Transfer Application. Para 6 of the order of the Supreme Court may be reproduced here:

3. "As regards on merits, we concur with the learned Chief Justice that the apprehension in the minds of the petitioners that they will not be dealt with fairly by the learned Sessions Judge is not well founded as to warrant transfer of the case. However, we may observe that the learned Sessions Judge should exercise constraint in making general observations. If at any stage he feels that it will not be fair for him to proceed with the matter for any reason, he should make a reference for that to the learned Chief Justice of the High Court:"

4. The submission of the learned counsel, in support of this Transfer Application, is that after the dismissal of the petition by the Supreme Court, certain observations have been made from which it appears that the learned Sessions Judge is prejudiced against the present applicant.

5. It was first submitted that on 11‑12‑1991, when the case was fired for hearing before the learned Sessions Judge, learned counsel being busy in the High Court, submitted an application under Section 344, Cr.P.C. stating that he was busy in the High Court and as such he was unable to attend the Court. It was further informed that the Transfer Application filed by Malik Aman and applicant Umar Farooq had been dismissed and copy of the order of the Supreme Court was enclosed. It was further stated in the application as follows:‑‑

6. "The accused have the honour of inviting attention of this Hon'ble Court towards para 6 of the aforesasid judgment by the Hon'ble Supreme Court and submitted that it would be in the interest of justice that the case is transferred to another Court which can be done by this Hon'ble Court itself or through the learned Chief Justice as suggested by the Hon'ble Supreme Court:'

7. On the said application following order was passed by the learned Sessions Judge:‑‑

8. "The DA. absent till 11‑45 a.m. Adjourned for further orders on this application regarding last prayer. Put off to 21‑12‑1991."

9. According to the learned counsel on the same date i.e. 11‑12‑1991, he had submitted a similar application in Sessions Case No.224/1991 in the same Court for adjournment but while adjourning that matter no remark of the absence of the learned counsel was made. According to the learned counsel by making observations "absent till 11‑45 a.m." the learned Judge has expressed his prejudice against the applicant. I find no merit in this submission. The making of the said observation does not indicate any prejudice.

10. The other submission of the learned counsel was that, on a bail application dated 22‑12‑1991 moved on behalf of the applicant before the learned Sessions Judge, order dated 8‑1‑1992 passed by the learned Sessions Judge rejecting the bail application contains certain observations which shows the bias of the learned Sessions Judge. Learned Judge, while dismissing the application has observed that the trial was being delayed by the accused and a perusal of his order shows no remark or observation which may furnish a ground to the applicant for transfer of the case.

11. Finally, it was submitted that there is a private complaint filed by accused Umar Khitab against the witnesses and complainant in the Sessions case and that the private complaint has been filed under Section 307/148/149, P.P.C. and the learned Sessions Judge wants to decide the case against the applicant first whereas he should decide both the Sessions case against the applicant as well as the private complaint together. In this connection reference be made to para 4 of the order dated 8‑1‑1992 of the learned Judge which reads as follows:‑

12. "I have considered the above contention of the learned defence counsel which appears to have been advanced for the first time in support of bail plea. I do not agree with this contention of the learned defence Advocate because the private complaint filed by accused Umar Khitab against the witnesses and complainant of this case under section 307/148/149, P.P.C. has not been even brought on file for the reason that the private complaint was instituted on 2‑10‑1990 before the Additional City Magistrate who had sent up the same to this Court on 2‑10‑1990 and ever since accused Umar Khitab who is complainants' in this case has not even examined himself under section 200, Cr.P.C. and the adjournments have been sought on one ground or the other. Even on the last date of hearing the learned Advocate submitted that till his application for transfer filed in the Sessions Case is decided, the statement of the complainant be postponed who was not prepared to examine himself on the above ground. This shows that the complainants case is also being deliberately delayed and unless the complainant is examined nothing can be said about the merits of this direct complaint.

13. This Court is of considered view that the proceedings of both the cases are being delayed by the accused persons as such accused Umer Khitab who is complainant in the direct complaint and main accused in the murder case cannot claim bail as a right on the ground of delay in the conclusion of this case. Application is therefore rejected."

14. I find no illegality or observation in the order dated 8‑1‑1992 which may furnish the applicant a ground for transfer of the case.

15. As a result I find no merit in this Application. Criminal Transfer Application No.2/92 is accordingly dismissed. The application for interim relief has become infructuous.

16. N.H.Q./U‑124/K. Application dismissed.