KAMRAN MALIK vs THE STATE
This matter arises from a petition for leave to appeal filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment of the High Court of Sindh, which dismissed the petitioner's criminal transfer application. The petitioner, an accused in a criminal case registered under Section 324 of the Pakistan Penal Code 1860 and Section 13-D of the Arms Ordinance 1965, sought the transfer of his trial from Jacobabad to Karachi, citing serious enmity and a threat to his life. The core legal question was whether an absconding accused who has been declared a proclaimed offender is entitled to seek the discretionary relief of case transfer without surrendering before the trial court. The Supreme Court held that the petitioner, being an absconder and a proclaimed offender since the registration of the case, cannot invoke the jurisdiction of the courts to seek relief without first surrendering to the process of law. The petition was accordingly dismissed and leave to appeal was refused.
- Whether an absconding accused is entitled to seek the transfer of a criminal case without surrendering before the trial court?
- Can a proclaimed offender invoke the discretionary jurisdiction of the court for relief while remaining a fugitive from justice?
- Section 324, Pakistan Penal Code 1860
- Section 13-D, Arms Ordinance 1965
- Section 512, Code of Criminal Procedure 1898
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
ORDER
' CH. MUHAMMAD ARIF, J.---Petitioner-Kamran is one of the nominated accused in case F.I.R. No,34 of 1994 registered at Police Station Bakhsha Pur, District, Jacobabad under section 324, P.P.C. Read with section 13-D of the Arms Ordinance, 1965 at instance of one Muhammad Ishaq on 18-4-1994. It is an admitted position that all the 9 accused in the said case, including petitioner Kamran Malik, are absconders and challan has been submitted under section 512, Cr.P.C. The case will be tried by the learned 1st Additional Sessions Judge, Kandh Kot, District Jacobabad having been received there on 14-3-1995.
2. Remaining unsuccessful in Criminal Transfer Application No,42 of 1997 before the High Court of Sindh, Karachi seeking transfer of the case from the Court of Additional Sessions Judge, Kandh Kot, District Jacobabad to any other Court at Karachi vide judgment/order, dated 31-8-1998, the petitioner has sought leave to appeal in the instant petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973.
3. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court appearing in support of this petition, has reiterated the plea raised before the High Court to the effect that as there is visible enmity between the parties in the case and as any appearance by the petitioner before the Trial Court will provide an opportunity to the complainant side to murder the petitioner, the case should have been transferred by the High Court, as prayed for in Criminal Transfer Application No,42 of 1997. He also referred to the details of the enmity including the incident of petitioner's father namely Abdul Malik having been murdered (in the year 1996) and submitted that transfer of the case to any other Court would have advanced the cause of justice.
4. A perusal of the impugned order shows that the learned Law Officer who appeared to oppose the transfer application before the High Court had relied upon the factum of the petitioner being a proclaimed offender and thus, not entitled to the relief of transfer of the case. The learned Judge in Chambers did consider the report of the learned Additional Sessions Judge, Kandh Kot specifically referring to the case being pretty old and all accused having been declared as proclaimed offenders vide order of the trial Court, dated 14-11-1996 "... And the case was kept on dormant file of this Court", while refusing the application. The learned counsel was not in a position to controvert any of the reasons advanced by the learned Judge in Chambers while dismissing Criminal Transfer Application No,42 of 1997. The petitioner is himself to blame for the situation in which he finds himself today. He is an absconder ever since the registration of the case against him in 1994 and the whereabouts of other absconders are not known till today. Without surrendering in the case, the petitioner obviously cannot tread the path/s of obtaining any relief from the Courts of law.
5. The petition is sans merit and liable to be dismissed. Order accordingly. Leave is refused.