2018 P Cr. L J 1484
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
GHULAM ALI ---Applicant
Versus
MUHAMMAD AZAM and another ---Respondents
Criminal Transfer Application No. (s) 141 of 2017, decided on 27th January, 2018.
Criminal Procedure Code (V of 1898) ---
----S. 526---Penal Code (XLV of 1860), S. 302---Murder trial ---Transfer of proceedings ---
Security of prosecution witnesses ---Complainant sought transfer of trial from c ourt at place
'S' to court at place 'D' on grounds of security of prosecution witnesses ---Validity ---
Application of complainant was supported by affidavits of prosecution witnesses who were
star eye -witnesses of the case and they were under fear and threat to appear before Trial
Court at place 'S' and record their statements ---Apprehension of security of prosecution
witnesses existed which was likely to result in inconvenience/ intimidation to prosecution witnesses if they would come forward and record thei r statements before Trial Court at place
'S'---High Court directed that case be withdrawn from court at place 'S' and was transferred to
court at place 'D' ---Application was allowed in circumstances.
Elahi Bakhsh for Appellant.
Muhammad Ibrahim Lehri for Respondent No.1.
Abdul Mateen, DPG for the State.
Date of hearing: 28th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of instant Criminal Transfer
Application filed by Ghulam Ali son of Abdul Sattar under section 526, Cr.P.C. f or transfer
of case from Sessions Judge, Sibi to the Court of Sessions Judge, Dera Murad Jamali or Sessions Judge, Dera Allah Yar.
2. Brief facts of the case are that the applicant/complainant registered FIR No.08/2016
with Police Station Bahag District Ka chi under sections 302, 34, P.P.C. against the accused
persons Muhammad Azam, Muhammad Aslam, Muhammad Gul, Zianuddin on the allegation of murder of his brother namely Mujeeb -ur-Rehman. It is further submitted by the appellant
that out of the above nominat ed accused persons Muhammad Azam son of Haji Allah Bakhsh
was arrested and after completion of investigation challan was submitted before the learned Sessions Judge, Sibi along with statements of under section 161, Cr.P.C. recovery memo postmortem report e tc and trial is yet to be commenced, while the applicant/complainant and
witnesses are also resident of Dera Murad Jamali and the accused party belongs to Sibi
District and being influential and hardened, advanced threats to the witnesses of the complainan t/applicant for appearance and recording their statements against the accused
persons, as such, the witnesses of the accused persons are under coercion and threat of their lives and could not be able to record their statements in the trial Court at Sibi. T he application
of the applicant is also supported by the affidavits of witnesses Ghulam Ali, Abdul Ghafar and Abdul Rehman, wherein it is categorically mentioned that the accused persons have advanced threat to the witnesses for recording their statements against them, as such, in view of the above circumstances, the case be transferred from Sessions Judge, Sibi to Sessions Judge, Dera Murad Jamali or Sessions Judge, Dera Allah Yar.
3. The notices of the application were issued to the State as well as to th e private
respondents, however, Mr. Muhammad Ibrahim Lehri, Advocate appeared on behalf of the private respondent No.1 and the State was represented by Mr. Abdul Mateen, Deputy
Prosecutor General.
4. The learned counsel for the applicant contended that the complainant by profession is
Gipsy and resident of Dera Murad Jamali, however, for grazing of their cattle traveling from
one to another place and on 26th January, 2014 when they were residing in their tents at Jok Qasim Shah Tehsil Bahag his brother Muje eb-ur-Rehman son of Abdul Sattar was grazing
his cattle become misplaced, however, he searched him by his own sources, but nowhere found him and thereafter he came to know that his brother was killed by the accused persons named above in the Para No.2 and Abdul Rehman son of Muhammad Qasim, Abdul Ghaffar son of Abdul Mutalib are eye -witnesses of the crimes, who specifically nominated the
accused persons for killing of his brother; that the investigation has been completed and the
trial is yet to be commence d: that the applicant and its witnesses are ready to record their
statements before the trial Court, but however, they have received threats from the accused persons for dire consequences, if they came forward and record their statements before the Court t hey would suffer; that the affidavits of all the witnesses are annexed with the
application; that there is a security threat to the prosecution witnesses to appear before the Sessions Judge, Sibi.
5. In view of the above, it would be convenient for the wit nesses of the prosecution to
record their statements to another nearest competent Court instead of Sessions Judge, Sibi.
6. Conversely, the learned counsel for the private respondent vehemently opposed the
arguments so advanced by the learned counsel for t he applicant and contended that the
complainant has failed to prove its case through confidence inspiring evidence, while it is an
unseen murder and no direct evidence available with the prosecution; that the applicant by means of such application wants to prolong the case by one pretext or the other, which would
cause futile exercise of law, that no threat was advanced by the accused/respondent to the applicant and his witnesses; that false affidavits of the witnesses have been filed by the applicant and e ven otherwise, due to transfer of the case, the accused party would suffer and
inconvenience would cause to the accused party.
7. On the other hand, the learned DPG while appearing on behalf of the State also
supported the version of the applicant and cont ended that to meet the end of justice, it would
be appropriate the security and convenience of the prosecution witnesses be kept in mind while transferring the case in accordance with law.
8. Heard the learned counsel for the parties and perused the record minutely, which
reflects that the FIR No.8 of 2016 was registered by the applicant/complainant against the
accused persons on the allegation of murder of his brother Mujeeb ur Rehman and it is categorically mentioned in the application that the complainan t is a gipsy by profession and
travelling from here to there for grazing of their cattle and in fact they are resident of Dera Murad Jamali and the star witnesses of the case also belong to Dera Murad Jamali and they have submitted their affidavits duly at tested by oath commissioner, wherein categorically
mentioned that they have received serious threats for dire consequences by the accused party for appearing before the trial Court and recording evidence against the accused persons.
9. In view of above, their life and liberty are under threat and it is not convenient for
them to appear before the trial Court and record their statements. It is pertinent to mention here that the affidavits so submitted by the witnesses of the applicant in written form have no t
been rebutted by the other side by means of filing counter affidavits, as such, the affidavits of
the witnesses remains firm and could not be thrown out from consideration.
10. The perusal of section 526, Cr.P.C. reflects that whenever it is made appear to the
High Court that an order under this section will tend to the general convenience of the parties
or witnesses then an appropriate order is essential to be passed keeping in view the convenience of the prosecution witnesses to feel secure at the place of trial.
11. In view of above provision of section 526, Cr.P.C. prima facie the application of the
complainant is supported by affidavits of prosecution witnesses being the star eye -witnesses
of the case and they are under fear and threat to appear befor e the trial Court at Sibi and
record their statements and there is an apprehension of their security, which is likely to result
inconvenience/intimidation to the prosecution witnesses, if they come forward and record their statements in the present trial C ourt.
12. It is also transpired from the record that the name of all above three witness have been
mentioned in the FIR as eye -witnesses of the case, accordingly the names of above witnesses
being appeared in challan in the list of calendar witnesses and t hey have submitted their
affidavits, wherein categorically mentioned that they have received serious threats from accused party for recording their statements against them by taking into consideration the added factor and the principle, I am of the view that since the applicant and his three witnesses has to come from Dera Murad Jamali to give their evidence. In view of the fact, the brother of applicant had been murdered at Bahag District Kachi and there is apprehended danger to their lives and all these c ircumstances rendered in favour of the complainant party
for the purpose of transfer of case to some other place. The learned D.P.G has also conceded that it will be in the interest of justice to take care the security of the applicant and the prosecution witnesses, so it would be appropriate the case be transferred from Sessions
Judge, Sibi to some another place.
13. For the aforesaid reasons, the application is accepted and it is hereby directed that the
case may be withdrawn from the file of learned Sess ions Judge, Sibi and be transferred to the
Court of learned Sessions Judge, Dera Allah Yar, as the prosecution witnesses have come from a far- flung area and the learned Sessions Judge, Dera Allah Yar is further directed to
complete the proceedings within a shortest possible time after the receipt of record and
proceeding the case, with further direction to 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 co urt at Dera Allah Yar.
MH/15/Bal. Application allowed.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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