P L D 1958 (W (PLP)

The issue of a notice is not mandatory and the want of notice does not amount to an illegality, but certainly it does amount to impropriety. Where some very serious allegations were made against the entire Police of the District and it was alleged that the Magis trates at the District Headquarters were under the influence of the Police, the case was transferred from the Additional District Magistrate's Court to that of the District Magistrate who was shortly to take charge of the District. S. Masoom Shah for Petitioner. Shahzaman Khan for Respondents.. Date of hearing: 30th November 1957. MUHAMMAD SHAFI, J.‑Fifteen persons were being prose cuted in one case and 5 in the other under different sections the P. P. C. in the Court of Resident Magistrate, Talagong. On the 31st of August 1957, Sub‑Inspector Muhammad Akbar Khan, who is supposed to be the victim of the assault in both the cases, made an application to the Superintendent of Police, Campbellpur, that the relevant authorities should be moved for the transfer of the case from the above Court for trial at Campbellpur. He gave several reasons for doing so. The Superintendent of Police forwarded the application to the District Magistrate, Campbellpur and wrote at the same time rather indiscreetly that he would speak to him. The District Magistrate, Campbellpur, by his order, dated the 4th of Septem ber 1957, withdrew both the cases from the Court of the Resident Magistrate, Talagong, and made them over to the Court of Additional District Magistrate, Campbellpur. Muhammad Amir, who is an accused person in both the cases, has made two applications under section 526 of the Criminal P. C. for their transfer from the Court of the Additional District Magistrate, Campbellpur, to some other District. It is argued that the cases may be transferred to District Mianwali from where Lava, where the occurrence has taken place, is only forty miles while Campbellpur is at a distance of eighty miles. It is further submitted that the Magistrates at Campbellpur are under the influence of the police, and therefore, the accused apprehend that they would not have a fair trial at their hands. I have heard learned counsel for the petitioner as well as the Sub‑Inspector concerned, and Mr. Shah Zaman, who appeared on behalf of the Additional Advocate‑General. I think the order of the learned District Magistrate suffers from an inherent defect, inasmuch as he did not give notice to the accused person before he transferred the case from the Court of the Resident Magistrate to the Additional District Magis trate, Campbellpur. It is true that section 526 of the Criminal P. C. does not provide for the giving of a notice to the opposite party, still on general principles; an order should not ordinarily be made on the application of one party without giving the opposite party notice of the same and an oppor tunity of showing cause against its being granted. As has been held in several authorities the issue of a notice is not mandatory and the want of notice does not amount to an illega lity, but certainly it does not amount impropriety. I sent the applications to the District Magistrate for com ments, who has invited my attention to Memorandum No. 815 -H‑Judi‑56‑2413, dated the 9th February 1956, from the Secretary to Government West Pakistan, Home Department, Lahore, to all Commissioners of Divisions in West Pakistan, that all cases relating to assault on public servants should be tried either by the District Magistrate himself or by the Addi tional District Magistrate. I agree with the directions issued by the Government of the West Pakistan, because the assault on public servant is a very serious matter and it should be dealt with, with promptitude and care and by the senior officers. I am, therefore, in agreement with the District Magistrate that the cases should not be tried by the Resident Magistrate, Talagong. I am, however, also not its favour of the cases being tried by the Additional District Magistrate, Campbell pur, because some very serious allegations have been made against the entire police of the Campbellpur District. The previous District Magistrate of Campbellpur, I understand, has retired, and a new District Magistrate is about to come to Campbellpur, who it is agreed between the parties, does not belong to Campbellpur, or to any District in close proximity of it. I think the ends of justice will be served if the District Magistrate himself tries the cases. I accordingly accept these applications and direct that both the cases should be heard by the District Magistrate, Campbellpur, and if it is not incon venient to him as well as to the parties, and there is no serious objection to the same, then he may try the cases at Talagong, because in coming to Campbellpur the accused have got to traverse a distance of about 84 miles, which involves a huge expense in the case of sixteen or eighteen persons. There will be no order as to costs. S. D. A./A. H. Petition accepted.