JAMEEL AHMED Versus AZAM AND 2 OTHERS

This is an application under section 526, Cr.P.C. read with section 561‑A, Cr.P.C. praying for an order for transfer of Sessions Case No.140/1985 arising out of Crime No.22/1985 under section 302/ 114/34, P.P.C. from the Court of Session at Hyderabad to the Court of Session at Nawabshah or any other Court of competent jurisdiction at Nawabshah.

2. The facts giving rise to this application briefly stated, are that the aforementioned Sessions case was pending in the Court of Additional Sessions Judge, Kandiaro. On an application made by Sardar, the respondent 2 from Jail, the case was transferred from the aforesaid Court to the Court of Session, Hyderabad, by the order of this Court dated 23‑12‑1987. Now, the applicant /complainant seeks transfer of the case from the Court of Session at Hyderabad to the Court of Session at Nawabshah.

3. The only ground submitted in support of the application is that it is inconvenient for the prosecution witnesses to give evidence and support the complainant or prosecution after travelling 200 miles from Taluka Kandiaro to Hyderabad on every date of hearing.

4. I issued notice to the accused who was brought from jail and appeared in the case. But, before that he submitted an application from jail stating that his case is not proceeding for the last four years and that he is a poor person and unable to engage even a counsel. He has further stated that he fears danger to his life from the applicant. Under the circumstances, the question for consideration is whether the convenience of the witnesses have to be given preference over the convenience of the accused and/or his witnesses, as the accused respondent 2 fears danger to his life if the case is transferred to Nawabshah. Further, it is submitted that the transfer of the case would further delay the proceedings in the case as four years have already passed. It may be pertinent to mention that the accused were lodged in different jails, one at Sukkur, one at Nawabshah and the third at Hyderabad, and by the order of this Court passed in the previous transfer application they were ordered to be lodged in the Central Jail, Hyderabad.

5. It is submitted by the learned counsel for the applicant that convenience of the complainant and witnesses has to be given preference. In support, he relies on Jan Muhammad Khan v. The State (1973 Law Notes 363). In this case the parties and the witnesses belonged to Kashmore, but as there was no Magistrate at this place, the complaint necessarily was filed at Jacobabad for disposal and delay was complained. Taking the general convenience of the parties into consideration the case was transferred to the Court at Kandkot which was about 30 miles from Jacobabad as compared to Kashmore which was about 100 miles from Jacobabad. In this case, the question of comparative convenience of the accused and the complainant and his witnesses was not considered. This case is, therefore, of no help to the learned counsel for the applicant.

6. The next case referred to by the learned counsel for the applicant is of Malik Adil etc. v. The State etc. (NLR 1984 UC 59!(2)). In this case, it was held that under section 526(1)(d), Cr.P.C., general convenience of the parties and the witnesses is valid ground for transfer and the case was transferred on that consideration. Therefore, this case is also not relevant to the point under consideration.

7. The third case relied upon by the learned counsel for the applicant is the case of this Court, namely, Muhammad Khan and another v. The State and another (P L D 1962 (WP) Karachi 864). In this case, apprehension of personal safety and convenience of the party were considered by Mr. Justice Abdur Rahim Kharal to be sufficient grounds for transfer. It may be mentioned that the grounds for transfer in this case were that the applicants apprehended danger to their life in view of the enmity with 'Hurs' and the applicants who lived at Mirpurkhas were afraid to travel to Sanghar and the other ground was that Mst. Sehat subject of the offence under section 366, Cr. P. C. was a T. B. patient and could not travel to Sanghar without danger to her life. This case does not advance the case of the applicant rather it indirectly support the case of the accused, as in this case danger to life was considered to be a sufficient ground for transfer whether it was due to enmity or witness being T.B. patient. Before me, the applicant has not pleaded that there is any danger to his life or his witnesses. It is the accused who has alleged that he fears danger to his life.

8. In the case of Muhapimad Jamshed v. The State (1985 MLD 66) to which my attention has been drawn by Mr. Syed Sarfaraz Ahmed, Assistant Advocate‑General, I had taken the view that the convenience of accused is preferable to the convenience of the complainant in a challan case and reliance was placed on Haji Bashir v. Jumo and another (1968 P Cr. L J 1100) and also on a decision from foreign jurisdiction in the case of P ? H. Metcalfe v . J. Watson (AIR 1924 Patna 708). I have no reason to depart from the view already taken by me in the above‑mentioned case when there is an added reason that further transfer of the case at this stage would further delay the proceedings. Learned counsel for the applicant‑has not advanced any arguments or given any reasons why i should change my view.

9. I, therefore, hold that while considering the question of transfer of case, convenience of the accused and/or his witnesses can be given preference over the convenience of the complainant and/or his witnesses unless there are some added factors which when take into consideration could tilt the weight in favour of the complainant.

10. In the case on hand the comparative convenience of the accused seems to be greater and the trial of the case will be further delayed; if the case is now again transferred. I, therefore, dismiss this application.

11. Learned counsel for the applicant requests that a directions may be given to the trial Court to dispose of the case as early as possible. To this request, the learned Assistant Advocate‑General has no objection, and rightly so as speedy trial is not only in .the interest of the parties but also in the interest of justice. I, therefore direct accordingly and further direct that the evidence of prosecution witnesses will be recorded when they attend the Court as far as possible so that they may not have to attend the Court again from a considerable distance.

M. B. A./J‑35/ K ???????????????????????????????????????????????????????????????????? Application dismissed.