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Criminal Petition for Special Leave to Appeal No. 48 of 1979, decided on 27th February, 1979.

(On appeal from the judgment and order of the Lahore High Court dated 8‑1‑1979 in Transfer Application No. 47/T of 1978).

---S. 526‑Transfer of criminal cases‑Petitioners and respondents very closely related, coming from a very influential family, and petitioners on allegation of one of respondents' men having been killed by petitioners facing trial before Sessions Court‑Transfer of case sought by respondents on ground of eye‑witnesses having been threatened by petitioners and complaints regarding such threats also allegedly made to authorities concerned‑Allegations, though denied by petitioners, but not possible in circumstances to say that High Court's order transferring case to another Court not supported by any material nor High Court required to hold an elaborate enquiry into allegations of respondents‑Notice having gone to State and State having not chosen to oppose application, High Court, justified in hearing transfer application even in absence of counsel for State Petitioner's contention that none was there to help or guide defence found incorrect‑Points raised in petition for leave not raised before High Court‑Not to be allowed to be urged at leave to appeal stage‑High Court's order based on materials, and not perverse Interference with such discretionary order of High Court declined in circumstances.‑[Transfer of criminal cases].

Milan Abdul Sattar Najam, Advocate and Syed Inayat Hussain, Advocate- on‑Record for Petitioners.

Khalid Mahmood Chaudhry, Advocate and Ch. Fazal Hussain, Advocate‑on-Record for Respondents.

Date of hearing: 27th February, 1979.

Sajid Abbas was murdered on the night of 1‑1‑1978 in village Budh Rajbana, District Jhang. The petitioners are being tried for this murder. The deceased was the son of one Mohammad Arif Khan, who is a former Member of the Legislative Assembly, Punjab. He had two wives, Ghulam Fatima and Jamila Begum. The first three petitioners are the sons of a deceased son of Muhammad Arif Khan through his first wife, Ghulam Fatima, whilst ‑the deceased was the son of Mohammad Arif Khan from his second wife. In these circumstances, it is not surprising that the prosecution case against the petitioners rests on the evidence of witnesses who are very closely related to the petitioners.

Now, the case was pending in the Sessions Court, but on the allegation that the prosecution witnesses had been threatened by the party of the petitioners, the respondent, who had lodged the F. I. R., filed an application in the Lahore High Court on 8‑3‑1978 for the transfer of the case against the petitioners from the Session Court, Jhang "to another district of calmer atmosphere." Although this application was opposed by the': petitioners, it was allowed by a learned Judge of the Lahore High Court, by his order dated 8‑1‑1979. Hence this petition for leave.

As we observed that the impugned order was a discretionary order, learned counsel criticised it on the ground that it was not based on any material whatever. We regret to state that this submission is not correct. Even from the arguments of the learned counsel, it is clear that the petitioners and the respondent, who are very closely related, come from a very influential family, and, in this background, the allegation in the transfer application was that the eye‑witnesses had:-

"been threatened by the accused party and as a result thereof petitioner had to move their womenfolk including the eye‑witnesses, i.e. Mst. Jamila Begum and Tahira Begum to Lahore. A report to that effect was lodged at Police Station, Jhang (Copy of the report is attached herewith). Subsequently on 25th January, 1978 some suspicious persons visited the house of Fayaz Ali P. W., at Gulberg; Lahore where the lady witnesses are lodged. The local police at:

Gulberg was duly informed of the incident. Copy of the written complaint is attached herewith. In view of the threats to his life Fayaz Ali P. W. made an application to the Secretary, Home Depart ment, Government of the Punjab, for the permission to carry his licensed weapons with him."

It is true that these allegations have been denied by the petitioners as false, but it cannot be said in the circumstances that there was no material in support of the impugned order, nor can we accept the submission that the learned Judge was required to hold an elaborate enquiry into the allegation of the respondents that prosecution witnesses had been threatened.

Learned counsel then submitted that all the male members of the family of the petitioners had been arrested so that their defence which was, being conducted by the mother of the first three petitioners would be greatly handicapped by the transfer of the case. The allegation that‑all the male members of the family of the petitioners had been arrested was vehemently denied by Ch. Fazal Hussain, who appeared on behalf of the caveator and even Mian Abdul Satter Najam admitted that the mother of the first three petitioners had two brothers who could help her: In order to overcome this difficulty, learned counsel stated that both these brothers had been falsely challaned under the Control of Goondas Act and had after their illegal prosecution stopped helping their sister. We were disturbed by this allegation, but we find that one of these brothers Mohammad Akram had filed an affidavit in the High Court in which he had supported his sister's plea that the case against the petitioners should not be transferred is from the Sessions Court, Jhang. It is true that the said Mohammad Akram has denied as false all the allegations contained in the respondent's transfer application. But, this denial itself reacts against the submission of learned counsel that there is no one to help or guide the mother of the first three petitioners in the conduct of the defence of these petitioners.

Learned counsel then stated that the impugned order was illegal because it had been passed without obtaining the views of the State on the question of the transfer of the case from Sessions Court to the Lahore High Court. This submission has disturbed us, because we find that the State was not represented in the High Court when ‑the respondent's transfer application was heard and decided. This was unfortunate and even the learned counsel for the caveators were not able to explain why the State was not represented at the hearing of the respondent's transfer application. Now whilst, this is a departure from the normal practice which we deplore, the learned counsel for the caveator stated that notice had gone to the State of the transfer application, and Mian Abdul Sattar Najam was not able to deny the allegation that notice had gone to the State. Necessarily, therefore this means that the State for reasons which we do not know, decided not to oppose the transfer application. In these circumstances, the learned Judge was justified in proceeding with the hearing of the transfer application even in the absence of the learned counsel for the State.

However, learned counsel's main submission was that the defence of the petitioners would be prejudiced if the case was heard in Lahore and he submitted that the case should be transferred to any district in the province other than Lahore and Jhang. When we enquired about the reasons for his apprehension about not being able to obtain a fair trial in Lahore, learned counsel's reply was that the said Faiyaz Ali, who was supporting the respondents was a very influential person, and he thought that Faiyaz Ali might go to the length of intimidating the mother of the first three petitioners, who was helping the petitioners in their defence. In further support of this application, learned counsel relied on the allegations in paragraphs 7, 8, 9 and 10 of the petition for leave and submitted that the petitioners and their relations were being harassed on false charge at the instance of the said Faiyaz Ali. We were disturbed by this submission, but the difficulty in the way of learned counsel is that the allegations set out in paragraphs 7 to 10 of the petition for leave were not raised before the High Court, therefore, we cannot grant special leave to examine objections which were not taken in the Court whose order is challenged before us.

In the result, it cannot‑ be said that the impugned order is not based on any material nor, can it be said that it is a perverse order. Accordingly, as it is a discretionary order, the petitioner has failed to make out a case for special leave and on this ground the petition is dismissed.

Petition dismissed.

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