Abdul Hadi v. Special Judge ATC,
Bench: Muhammad Noor Meskanzai
📝 AI Summary — Plain-Language Overview
This case involved Abdul Hadi, a police constable facing trial for triple murder in an Anti-Terrorism Court in Khuzdar. During the trial proceedings, a prosecution witness told authorities he feared for his life if he had to testify in Khuzdar, since he and several other witnesses were settlers from Karachi living amid tense local conditions. Based on this, the trial judge ordered that the accused's trial be conducted inside Central Jail Gaddani instead of the regular courtroom in Khuzdar.
The accused challenged this order in the Balochistan High Court, arguing it caused him financial hardship and inconvenience, since his lawyer had to travel further and only some witnesses had been examined in each location. He suggested the case be moved to Quetta instead, and cited past cases where courts considered convenience for both parties when deciding on trial locations.
The High Court rejected the petition. It held that the witnesses' fear for their safety, given the security situation in the area and their status as outsiders, was genuine and reasonable, and that this concern for witnesses' lives outweighed the accused's claims of financial inconvenience. The court distinguished the precedents cited by the petitioner as not applicable to these facts. It ordered that witnesses from Karachi and Hub be examined at Gaddani Jail, while the rest of the trial continue in Khuzdar.
This case illustrates how courts balance witness safety against the convenience of an accused when deciding where a criminal trial should be conducted.
یہ مقدمہ عبدالہادی نامی پولیس کانسٹیبل سے متعلق ہے جس پر خضدار کی انسدادِ دہشت گردی عدالت میں تین قتل کے الزام میں مقدمہ چل رہا تھا۔ ٹرائل کی کارروائی کے دوران استغاثہ کے ایک گواہ نے حکام کو بتایا کہ اگر اسے خضدار میں گواہی دینا پڑی تو اسے اپنی جان کا خطرہ ہے، کیونکہ وہ اور دیگر کئی گواہ کراچی سے آ کر آباد ہونے والے تھے اور مقامی حالات کشیدہ تھے۔ اس بنیاد پر ٹرائل جج نے حکم دیا کہ ملزم کا مقدمہ خضدار کی معمول کی عدالت کے بجائے سنٹرل جیل گڈانی کے اندر چلایا جائے۔
ملزم نے اس حکم کو بلوچستان ہائی کورٹ میں چیلنج کیا اور موقف اختیار کیا کہ اس فیصلے سے اسے مالی مشکلات اور تکلیف کا سامنا ہے، کیونکہ اس کے وکیل کو زیادہ سفر کرنا پڑتا ہے اور ہر مقام پر صرف کچھ گواہوں کا ہی بیان قلمبند ہو سکا ہے۔ اس نے تجویز دی کہ مقدمہ کوئٹہ منتقل کر دیا جائے، اور ماضی کے
Generated from the full judgment text below — not a substitute for reading the actual opinion.
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.