2011 P Cr. L J 76
[Quetta]
Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J
ABDUL HADI ---Petitioner
Versus
SPECIAL JUDGE ATC, KHUZDAR and another ---Respondents
Constitutional Petition No. 121 of 2010, decided on 21st June, 2010.
Penal Code (XLV of 1860) ---
----S. 302--- Constitution of Pakistan, Art. 199 --- Constitutional petition ---Qatl-e-amd---
Accused challenged the Trial Court's order to conduct his trial in jail on the application of a
prosecution witness who alleged that he was facing threat to his life ---Validity ---In view of
prevailing conditions in the area, the witness's apprehension was genuine and justifiable ---
Witnesses were, therefore, directed to be examined in jail ---Constitutional petition was
dismissed for having no force.
Nasir Zafar v. The State and another 2001 PCr.LJ 937 and Chairman National Accountability
Bureau, Islamab ad and others v. Mian Muhammad Abbas Sharif and others PLD 2001 Lah. 157
distinguished.
Wasay Tareen and Abdul Khair Achakzai for Petitioner.
Sardar Ahmed Halimi for the State.
ORDER
MUHAMMAD NOOR MESKANZAI, J .---Through this Constitutional Pet ition petitioner
seeks setting aside of order dated 18 -2-2010 passed by Special Judge, Anti Terrorism Court
("ATC"), Khuzdar whereby learned Special Judge ATC ordered the trial of petitioner to be
conducted at Central Jail Gaddani.
Facts as emerge from p etition and the annexures thereof briefly stated are that petitioner/Abdul
Hadi a police constable No.1782/ATF is facing trial in case F.I.R. No.39 of 2009 for allegedly
having committed triple murder through official kalashnikov. During the course o proce edings
one of the witness namely Abdul Rasheed made an application to the DPO Lasbella and
expressed his inability to appear before Special Judge, ATC Khuzdar at Khuzdar on account of
the fact that the said witness along with other witnesses are settlers, keeping in view the
prevailing circumstances of Khuzdar District they apprehend threat to their lives. On this
application the learned Special Judge, ATC Khuzdar after hearing the parties ordered the trial of
petitioner to be conducted within the premises of Central Jail Gaddani.
Mr. Abdul Wassay Tareen, learned counsel for petitioner stated that he is aggrieved by the order
dated 18 -2-2010 passed by respondent No.1, whereby trial of the case has been transferred from
Khuzdar to Central Jail Gaddani only on the ground that P.Ws. were not in a position to appear
before ATC, Khuzdar. Learned counsel further stated that counsel for petitioner is being
inconvenienced and the cost of appearance in Gaddani is not sustainable. He further contended
that no allegat ion was made against the accused, who in any case is behind bars. He states that a
request for transfer of the case was made on the administrative side, which was not conceded to.
Learned counsel states that out of 27 designated witnesses 6 have been exami ned so far, out of
which 4 have been examined at Khuzdar and 2 have been examined at Gaddani Jail and if all the
remaining witnesses are examined at Gaddani, the petitioner will be further inconvenienced. It
was also suggested that the case may be transfer red from Khuzdar to Quetta which is more
convenient to both the parties. Learned counsel placed reliance upon the case title "Nasir Zafar v.
The State and another" reported in 2001 PCr.LJ 937 and "Chairman, National Accountability
Bureau, Islamabad and oth ers v. Mian Muhammad Abbas Sharif and 7 others" PLD 2001 Lahore
157.
Mr. Sardar Ahmed Haleemi Special Prosecutor, ATA opposed the petition and argued that a
private witness namely Abdul Rasheed submitted the application which was allowed by the
responde nt No.1. He further argued that the said Abdul Rasheed is a resident of Karachi and so
are the 9 of the nominated witnesses. Learned counsel submitted that actually witnesses, are
settlers and residents of Karachi apprehend threat to their lives. Learned c ounsel for State further
places reliance on section 21 of the Anti -Terrorism Act, 1997 ("ATA").
We have heard learned counsel for the parties and perused the available record. We have given
our anxious thought to the proposition involved as to whether on account of financial loss
allegedly caused to petitioner/accused would constitute a ground for setting aside of the
impugned order keeping in view the prevailing local atmosphere of the area. Learned Special
Judge decided to conduct the trial in the premi ses of Central Jail Gaddani because of said fact.
We are afraid no such ground legally entitles petitioner to have his trial at Khuzdar. The request
of trial to be held at Central Jail Gaddani was not made by the prosecution itself rather the same
seems to have been made by witnesses who are settlers. Secondly, witnesses belong to Karachi,
therefore, their apprehension regarding their lives particularly keeping in view the local
atmosphere of the area was not only reasonable but genuine and based on bona fi des. The request
of the learned counsel for the petitioner that the case may be transferred from Khuzdar to Quetta
was turned down by this Court vide ground "C" of the petition, which reads as under:
"That it is suffice to mention here that the petitione r preferred an application before this
Hon'ble Court for transfer of the case from Anti -Terrorism Court Khuzdar to ATC Quetta
on the ground that the petitioner and his witnesses which will be produced on his behalf
are receiving threats and their lives are in danger, but the said application was not
allowed on the other side application of said witness was entertained which is highly
uncalled for."
To the contrary suggestion made by the Special Prosecutor ATA seems to be reasonable,
rational, plausible an d justifiable. We have also gone through the citations referred to by the
learned counsel for the petitioner, which do not help petitioner, as the facts are distinguishable.
We are mindful of the settled principle considered in case title "Nasir Zafar v. T he State and
another" reported in PCr.LJ 2001 page 937 that while transferring the case the convenience of
both the parties is kept in view. Secondly in that case there were two F.I.Rs. against the accused
at two different places whereas petitioner claims inconvenience regarding his financial loss
whereas witnesses feel threat to their lives which would take priority over financial
loss/inconvenience. As far as PLD 2001 Lahore 157 is concerned, the same does not help the
petitioner as facts are distinguisha ble. It may be stated that there is no transfer of the case rather
conduct of the trial by the same Judge instead of Khuzdar is being conducted at Gaddani for a
valid, proper and justified reason and for particular purpose. Keeping in view the suggestions of
learned Special Prosecutor we observe that the witnesses resident of Karachi and Hub be
examined at Gadani Central Jail whereas rest of the proceedings be conducted at Khuzdar. With
above observation, we find no force in this petition which is dismissed in limine.
A.R.K./91/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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