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Criminal Transfer Application No. 329 of 1962, decided on 22nd August 1962.
"Party interested"‑Person lodging First Information Report and moving machinery of Police‑and Criminal Courts‑Entitled to make transfer application in, certain circumstances' Apprehension of personal safety and convenience of party‑Sufficient grounds for transfer.
B. J. Desa for Applicants.
Murtaza Hussain for Respondent‑No. 1.
A. Hafeez Memon for Respondent No. 2.
Date of hearing: 22nd August 1962.
This is a transfer application in a case pending before the Sub‑Judge and Ist Class Magistrate, Sanghar. The grounds for transfer are that the applicants apprehended danger to their life in view of their enmity with Hurs', Sanghar being a Hur area and the applicants who live at Mirpurkhas are afraid to travel to Sanghar. The other ground is that Mst. Sehat subject of the offence under section 366, Cr. P. C. is a T. B. patient and cannot travel to Sanghar without danger to her life.
2. The learned counsel for the opponents urged that the applicant Muhammad Khan who had lodged the F. I. R. in the case is not an interested party' to which right to make a transfer application is given by sub‑clause 3 of section 526, Cr. P. C. He relied upon Jamuna Kanth Jhan v. Rudra Kumar Jhan and others (A I R 1920 Pat. 836). The point brought out in the ruling is not clear; besides, the ruling was given before the Criminal Procedure Code was amended in 1923. The learned advocate then relied on Sri Krishna v. Baij Nath and others (A I R 1953 All. 698), which clearly supports his case and reads:
"A person who makes a report, or is injured on account of the commission of the crime or is related to the person injured or killed, therefore, does not thereby become party interested' within the meaning of section 526 (3) and has no right to apply for transfer."
This may perhaps be a good law so far as the Indian Courts are concerned but so far as Pakistan Courts are concerned the law as applied in Pakistan has always been different. In Sardar Shah v. Gurdit Singh and others (A I R 1934 Lah. 612) it is stated:
"Section 526 (3) is sufficiently wide and comprehensive and a person who has lodged the complaint and moved the machinery of the Police and the Criminal Courts continues to be a party interested and he is entitled to move the High Court in certain circumstances for the transfer of the case. But where a charge is instituted on a police report and in, which the prosecution is in the hands of the Public Prosecutor exceptionally strong grounds would have to be shown before the High Court would exercise its power to transfer at the instance of a private complainant when the responsible authorities are satisfied that there is no ground for withdrawing the case from the Court which is hearing it."
Justice Shabir Ahmad in Crown through Mst. Bhag Bhari v. Mian Hussain and another (P L D 1955 Lah. 402, 403), also agreed with the view expressed in AIR 1934 Lah. 612.
3. On the merits of the case the learned counsel for the State did not oppose the transfer and agreed that the applicant Muhammad Khan had a real apprehension about his safety and therefore, on this ground as well as on the ground of convenience the case may be transferred to a Court at Mirpurkhas. The learned Advocate for the opponent argued that the alleged danger should be personal to Muhammad Khan and not to his relations applicant No. 2 Fakir Muhammad or Mst Sehat. In ground 3‑C Muhammad Khan has expressed apprehension about his own person also; besides, apprehension with regard to Fakir Muhammad and Mst. Sehat would be a good ground for Muhammad Khan for obtaining a transfer.
3. The challan shows that opponent No. 2 accused Haji Sumar himself lives at Mirpurkhas. Some of the witnesses come from Khipro but that would not cause inconvenience to the accused persons. I agree with the learned Advocate for the State that sufficient grounds are made out for transfer of the case to Mirpurkhas. The case is transferred to District Magistrate Mirpurkhas who may keep the case on his own file or send it to any other Magistrate at Mirpurkhas.
K. B. A.
Application accepted.
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