AMIR ALIAS KHAN and another vs THE STATE and 2 others

' ABDUL HAMEED DOGAR, J.---By this judgment we propose to dispose of Criminal Petition No,72- P/2001 and Criminal Petition No,73/P/2001 alongwith Criminal Miscellaneous Application No,39- P/2001 and Criminal Miscellaneous Application No,40-P/2001, as they arise out of the same impugned Order dated 24-9-2001 passed by learned Chief Justice of the Peshawar High Court, Peshawar, whereby the Transfer Applications Nos.42 and 44 of 2001 filed by petitioners-Amir Atlas Khan and Eid Muhammad Khattak, were dismissed. The petitioners seek leave to appeal against the said Order.

2. The facts leading to the filing of these Petitions are that petitionerAmir. Altas Khan, a WAPDA employee and petitioner-Eid Muhammad Khattak, a practising Advocate of the Peshawar High Court were nominated in the murder of one Umar Khan vide F.I.R. No,9 under sections 302/34, P.P.C.

Lodged on 24-1-2001 at Police Station Latamber, District Karak.

' They were sent up to face trial before the Court of learned Sessions Judge. Karak. They, however, moved applications for transfer of their ease to any other Court of competent jurisdiction agitating the grounds that they did not expect fair trial, as the learned Sessions Judge, Karak in spite of release of petitioner-Eid Muhammad Khattak under section 169, Cr.P.C. Directed the Police to submit the challan and also issued non-bailable warrants against him and also that their lives were at stake due to old animosity of previous murder case in between the parties. Thus, there being danger of life it was impossible for the petitioners to travel from Peshawar to Karak on each and every date of hearing.

3. We have heard Mr. M. Sardar Khan, learned Senior Advocate Supreme Court on behalf of the petitioners as well as Barrister Masood Kausar, ASC for respondent No,3 and also Mr. M, Waris Khan, Additional Advocate-General, N.-W.F.P. On behalf of the State in detail and have gone through impugned order as well as record and proceedings of the case in minute particulars.

4. Learned counsel for the petitioners mainly reiterated the same grounds urged by him in the petitions. He, however, emphasized that petitioner-Eid Muhammad Khattak will not have a fair trial at the hands of learned Sessions Judge, Karak who in spite of issuing summons at the first instance straightaway issued non-bailable warrants against him irrespective of the fact that he was released under section 169, Cr.P.C. By the Police. He next contended that the father of petitioners namely Gui Nawaz was murdered by the complainant-Saleem Khan in which case said Saleem Khan was acquitted about 5 years back and because of that old enmity the petitioners apprehend the danger of life as he since his acquittal is roaming behind them with Kalashnikov in his hands, as such, they could be done to death on the way while going to the Court all along from Peshawar where they reside. In support, he relied upon the case of Haji Khawar Saleem v. The State (2001 SCM R 905) and contended that in view of the principle laid down in this case, matter may be transferred.

5. On the other side Mr. Masood Kausar, Advocate Supreme Court learned counsel for respondent No,3 vehemently controverted the above contentions and argued that petitioners have failed to substantiate the allegations by failing to produce any proof in support whereof. According to him, it would not be in the interest of justice to transfer the case only on mere general allegations.

6. Mr. M. Waris Khan, learned Additional Advocate-General, N.-W.F.P. Submitted that in view of old enmity between the parties, it would be appropriate to transfer the instant case to some other Court of competent jurisdiction in any neighbouring District.

7. As the matter is short one and all the material is already before the Court, we have decided to convert these criminal petitions into appeals and to dispose of the same on merits.

8. It is settled principle of law that a party could not claim the transfer of case as a matter of routine or at its wishes unless it is shown from the record that in the circumstances a free and fair trial is not apparent on the face of it. Though neither allegation of any bias had been raised in the transfer application against the Presiding Officer of the Court nor it has been agitated specifically by the learned counsel appearing on behalf of the petitioners before us, yet the issuance of non- bailable warrants against petitioner-Eid Muhammad Khattak, a practising Advocate though released under section 169, Cr.P.C. By Police created an apprehension in his mind that he will not have a fair and free trial at the hands of learned Sessions Judge, Karak.

9. Because of a previous murderous enmity as stated above, hostility is existing between the parties and in the circumstances petitioners' apprehension that they would be killed on the way while going to the Court at Karak from Peshawar merits paramount consideration. Under the existing facts and circumstances when blood filed is going on between the parties the petitioners can justifiably seek transfer of their case to any other neighbouring District. This Court in the case of Haji Khawar Saleem v. State (supra) has dealt with the matter in the similar circumstances and has transferred the case from the Court of learned Sessions Judge, Sargodha to the Court of learned Sessions Judge, Faisalabad while holding that though he had no personal complaint against the learned Presiding Officer of the Court but due to the fact that he was directed to submit bail bond in the sum of Rs, one lac with two sureties each in the like amount failing which to remain in civil prison till the said bond had been furnished, he had entertained an apprehension that he may not get fair treatment, for, in a case in which the maximum punishment was imposition of fine of Rs,200 he had been ordered to furnish bond in huge amount which amounted to deprive him of the right to defend the case.

10. Accordingly, while allowing the appeals, we feel it persuaded to hold that it would meet the ends of justice to transfer the instant case from the Court of learned Sessions Judge; Karak to the Court of learned Sessions Judge, Kohat for disposal according to law which will be convenient to both the parties.

' For the foregoing reasons, the appeals are accepted and the impugned order dated 24-9--2001 of the learned Peshawar High Court, Peshawar is set aside.