--S. 526--Application for transfer of case from Court of judicial magistrate to Court of Additional District & Sessions Judge-

 PLJ 2021 Cr.C. (Note) 52

Criminal Procedure Code, 1898 (V of 1898)--

----S. 526--Application for transfer of case from Court of judicial magistrate to Court of Additional District & Sessions Judge--As to maintainability of instant application seeking transfer of case suffice it to say that in terms of Section 526 Cr.P.C. this Court on application of a party interested or on report of lower Court or on its own initiative can order transfer of case/cases from one criminal Court subordinate to it to any other such criminal Court of equal or superior jurisdiction.                                                                      [Para 6] A

Applicant present in person.

Mr. Abdullah Rajput, APG.

Mr. Maroof Hussain Hashmi, Advocate files power on behalf of Respondent No. 2 Tazaeen Qureshi alias Jasmine.

Date of hearing: 10.5.2017.

 PLJ 2021 Cr.C. (Note) 52
[Sindh High Court, Karachi]
Present: Ahmed Ali M. Shaikh, C.J.
JAVED HALEEM, ADVOCATE--Applicant
versus
VTH JUDICIAL MAGISTRATE, AT KARACHI (EAST) and 2 others--Respondents
Crl. Transfer Appln. No. 26 of 2017, heard on 10.5.2017.

Order

Through this application, applicant sought transfer of Crime No. 491/2011 under Section 13-E of Arms Ordinance registered at PS Zaman Town from the Court of Judicial Magistrate-V, Karachi East to the file of 1 Additional District and Sessions Judge, Karachi South.

2. On 06.9.2011 Fahim-ul-Karim, Advocate alongwith Wajid Mughal and Mst Quratul Ain were murdered and applicant herein lodged FIR No. 340/2011 under Sections 302 and 34 PPC at Defense Police Station, Karachi. During course of investigation, police arrested Respondent No. 2 and Rehan Niazi and on 15.9.2011 former led the police to recovery of 32 bore revolver No. 583282 from her house located in Korangi. Accordingly, police registered FIR No. 491/2011 under Section 13-E of Arms Ordinance at PS Zaman Town, Karachi East and submitted final report before Civil Judge and Judicial Magistrate-V, Karachi East, where case is pending trial.

3. Learned counsel for the applicant and APG submitted that admittedly Criminal Case No. 3995 of 2011 (FIR No. 491/2011 under Section 13-E of Arms Ordinance of PS Zaman Town) is offshoot of main Sessions Case No. 411 of 2011 (FIR No. 340/2011 of PS Defense Karachi) pending trial before 1st Additional District and Sessions Judge, Karachi South and in order to avoid conflicting orders entailing grave injustice the application be allowed and criminal case No. 3995/2011 be transferred to the file of 1st Additional Sessions Judge, Karachi South.

4. Conversely, Mr. Maroof Hashmi, learned counsel for the Respondent No. 2 submitted that FIR No. 340/2011 was registered at PS Defense, Karachi South while FIR No. 491/2011 under Section 13-E of Arms Ordinance was registered at PS Zaman Town, Karachi East, therefore, latter case is not offshoot of murder case registered on 06.9.2011. He further submitted that this Court can only transfer cases when there was sufficient ground available to the applicant while contrarily applicant has filed instant application only when trial Court allowed application under Section 540 Cr.P.C. He submitted that applicant is just trying to linger on the proceedings and not interested in early disposal of the case.

5. Heard arguments of the learned counsel for the parties, APG and scanned the material available on record. Perusal of the FIR reflects that weapon in question i.e. revolver was used in the main case and it was recovered on the pointation/revelation of Respondent No. 2, facing trial in main case/crime No. 340/2011 under Section 302/34 PPC of PS Defense, pending before learned 1st Additional Sessions Judge, Karachi South. Moreover, the charge sheet available on record also corroborates the above. It is also worthwhile to mention here that per prosecution the revolver was used in murder case while it was not the case of the Respondent No. 2 that it is yet to be determined whether the said revolver was used in the offence or not.

6. As to the maintainability of instant application seeking transfer of the case suffice it to say that in terms of Section 526 Cr.P.C. this Court on the application of a party interested or on the report of the lower Court or on its own initiative can order transfer of case/cases from one criminal Court subordinate to it to any other such criminal Court of equal or superior jurisdiction.

7. In the given circumstances, I am of the considered view that Criminal Case No. 3995/2011 culminating from crime No. 491/2011 of PS Zaman Town, pending before V Judicial Magistrate, Karachi East, is offshoot of Sessions Case No. 411 of 2011 (FIR No. 340/2011 under Section 302/34 PPC) pending trial before 1st Additional Sessions Judge, Karachi South and propriety demands that both the cases should be tried and decided by one criminal Court. Consequently, instant application stands allowed and Criminal Case No. 3995/2011 (FIR No. 491/2011 of PS Zaman Town) is withdrawn from the Court of Judicial Magistrate-V, Karachi East and is transferred to the file of 1st Additional Sessions Judge, Karachi South for trial and disposal in accordance with law.

(A.A.K.)          Application allowed