UMAR HAYAT LALIKA Versus MUHAMMAD AFZAL CHAN

ORDER

1. This transfer application under section 526, Cr.P.C. has been filed by one Mst. Shamim Akhtar for transfer of a case pending in the Court of 1st Additional Sessions Judge, Jacobabad to the Court of Sessions Judge, Sukkur. The son of the present applicant Mst. Shamim Akhter was murdered in City Jacobabad and as such first information report was lodged by one Assistant Sub-Inspector of Police Shamsuddin on behalf of State for an offence under section 302, Q&D Ordinance read with 34, P.P.C. being Crime No.71 of 1992 of Police Station City Jacobabad and Sessions Case No.156 of 1992 of Sessions Court Jacobabad.

2. The case of the prosecution as alleged in the first information report is that deceased Muhammad Ajmal was working as the police constable at Jacobabad, but he subsequently got himself transferred to Punjab. It is alleged in the first information report that he was murdered by two unknown persons near Capital Cinema in the city of Jacobabad at a distance of about 2 furlongs from Police Station Jacobabad, on 3-6-1992 at about 1-30 p.m. According to the first information report, the deceased Muhammad Ajmal had come to Jacobabad to attend the hearing in the Court of 1st Additional Sessions Judge, Jacobabad in connection with a direct complaint pending against him in that Court filed by one Mir Muhammad Dayo. Deceased Muhammad Ajmal was step-son of one Shah Muhammad Soomro. Mst. Shamim Akhter (applicant) is mother of the deceased Muhammad Ajmal who belonged District Jhang. It is stated in the first information report that after the death of her husband Shah Muhammad Soomro, the applicant Mst. Shamim Akhtar and her other family members shifted from Jacobabad to Punjab and deceased also himself got transferred to Punjab. On the day of incident, the deceased Muhammad Ajmal had come to attend the Court at Jacobabad and was murdered in the city of Jacobabad.

3. After usual investigation, the police challaned Dhani Bux and others for an offence under sections 302/148 and 149, P.P.C., and the case is pending in the Court of 1st Additional Sessions Judge, Jacobabad.

4. According to the challan, the witnesses namely Ahmed Bux, Muhammad Nawaz and Azhar Abbas belong to District Jhang in the Province of Punjab. The three accused have been challaned and two others have been shown as absconders in the challan.

5. The main contentions raised by the learned counsel for the applicant are: (i) that the three prosecution witnesses belong to District Jhang in Punjab Province, (ii) that the Jacobabad being a small city, it will be very difficult for the prosecution witnesses to come to Jacobabad and stay at Jacobabad for the purpose of giving evidence as according to the learned counsel proper and safe residential accommodation will not be available for the prosecution witnesses at Jacobabad, (iii) that the prosecution witnesses are being given threats by the accused who are on bail not to give evidence against them, (iv) that even there is no train available from Jhang to Jacobabad and therefore, the witnesses will have to change the trains at various places even in the Province of Sindh to reach Jacobabad City on the dates of hearing. According to the learned counsel for the applicant in view of the above circumstances, it will be convenient for the prosecution witnesses and for the applicant Mst. Shamim Akhtar to come to Sukkur for the, purpose of giving evidence and for the purpose of pursuing the murder case of her son at Sukkur as many trains come from Punjab to Rohri which is very near to Sukkur City, and according to them it will not be inconvenient for the accused who are on bail to attend the Court at Sukkur which is hardly 50 miles away from Jacobabad.

6. I have gone through the entire material placed before me and I have heard the arguments of all the parties involved in the case.

7. Three prosecution witnesses have to come from Jhang, Punjab and even Mst. Shamim Akhtar will have to come to pursue this matter from Punjab. Nowadays, it takes long time to complete the trial and some times the prosecution witnesses have to come to the Curt on many dates of hearing for the purpose of giving evidence. The applicant is a lady and her son has been murdered at Jacobabad hence they have genuine feeling of apprehending danger to their life if they go to Jacobabad to give evidence in Court.

8. It has been held in 1988 P Cr. L J 841 by his Lordship Justice Naeemuddin, the then Chief Justice of Sindh High Court, Karachi that while considering the question of transfer of the case convenience of accused and/or his witnesses can be given preference than the convenience of the complainant and/or his witnesses unless there are added factors which when taken into consideration could tilt the weight in favour of the complainant.

9. Considering the above principle, I am of the view that since the applicant has to come from Jhang and her 3 witnesses will have also to come from Punjab to give evidence and in view of the fact that her son had been murdered at Jacobabad and as she apprehends danger to her life all these circumstances go in favour of the complainant party in this case for the purpose of transfer of this case to some other place.

10. The learned counsel for the State Mr. Zawar Hussain Jafferi, A.A.-G. has also conceded that it will be in the interests of justice to transfer this case from the Court of 1st Additional Sessions Judge, Jacobabad to some Court at Sukkur as otherwise according to him the prosecution witnesses may not be able to give evidence against the accused on account of fear to their lives.

11. For the aforesaid reasons, I hereby direct that the case may be I withdrawn from the file of learned 1st Additional Sessions Judge, Jacobabad and be transferred to the Court of learned Sessions Judge, Sukkur, as the prosecution witnesses have to come from a far off place. The learned Sessions Judge, Sukkur is further directed to complete the proceedings within a period of 3 months after the receipt of record and proceedings of this case, and also send progress report of the case to the Additional Registrar of this Court for every date of hearing. He is further directed not to give unnecessary adjournments and the prosecution witnesses particularly those who come from Punjab may be examined on the same day when they appear before the Court. The learned Sessions Judge may also direct the police to provide necessary security to the prosecution witnesses and the applicant if the same is requested by them when they come to attend the Court at Sukkur.

12. I had passed a short order for the transfer of this case on 25-10-1993, and these are the reasons for the same.

13. N.H.Q./S-1024/K Case transferred.