P L D 1966 (W (PLP)

Dates of hearing: 17th and 22nd December 1965. This is a Jail appeal filed by Nazar Muhammad appellant against the order of Syed Sarfraz Husain, Magistrate section 30, Lyallpur, dated 18th August 1962, whereby he convicted the appellant under section 379/75 of the Pakistan Penal Code and sentenced him to five years' R. I. Besides, it was ordered that the movements of the appellant be restricted for a period of three years after the expiry of sentence of imprisonment within the limits of police station Multan Cantt, and that he shall report at the police station on every Monday and Thursday between 4 to 6 p.m.

2. The appellant had prayed for an opportunity of being heard personally and was accordingly summoned for 17th December 1965, the date for which the case was originally fixed, but could not be argued owing to the absence of the State counsel, and since the appellant had been brought from Montgomery Jail, I allowed him an opportunity of making his submissions. He only stated that he had been falsely implicated in the case as the trial Magistrate was annoyed with him.

3. The background of the case is that the appellant was convicted by a Magistrate of Multan vide his order dated 19th January 1959 under section 379/75, P. P. C. and sentenced to undergo four years R. I. He while presumably on bail, picked the pocket of Ghulam Asghar, Overseer, on 19th July 1962 at about 8‑30 p.m. at the bus stop near the gate of Jinnah Colony, Lyallpur, while the latter was coming out of the bus, and removed two currency notes Exhs. P.1 and P.2 of the denomination of Rs. 10 and Rs. 5, respectively from his pocket. Ghulam Asghar had to get down at the main gate of Jinnah Colony where the bus stopped and while he was getting down he felt a jerk and at once realised that his pocket was being picked. He immediately caught hold of the arm of the pick‑pocket and raised an alarm. The pick‑pocket who later turned out to be the appellant got his arm released and started running. He was, however, given a hot pursuit by H. C., Muhammad Afzal Khan (P. W. 3), Muhammad Bashir (P. W. 1) and Muhammad Iqbal (P. W. 2) and was soon over‑taken at a short distance. He was, at that time, holding currency notes Exhs. P. 1 and P. 2 in his hand which were taken into possession by the Head Constable who happened to be on patrol duty, vide memo. Exh. P. A. Blade Exh. P. 3 was also recovered from his possession, vide memo. Exh. P. B. The Head Constable recorded the statement of Ghulam Asghar, Overseer, Exh. P. C., prepared site plan, Exh. P.D. and after recording of the formal first information report, Exh. P. C/1 and completion of the other necessary formalities, the appellant was sent up for trial and finally convicted as stated earlier.

4. It appears pertinent to mention that on 17th August 1962, in the course of the trial, the appellant threw filth on the trial Magistrate and abused him for which a separate complaint under section 228, P. P. C. was filed by the trial Magistrate, but he did not transfer the case which he should have done in these circumstances, as having himself become the complainant against/, the same accused, he could not be expected to discharge his duties as a Judge in a perfectly fair, impartial and unbiased manner. He advanced two reasons for not doing so, firstly, that the appellant did not move for the transfer of the case, and secondly, a transfer in such circumstances would be creating a bad precedent, facilitating the transfer of cases on such pretexts. I am afraid, these grounds hardly create a justification for not transferring the case. Normally, a person seeking transfer of his case does so apprehending that he may not have a fair trial and if in order to seek a fair trial of his case, he commits yet another offence, this would indeed be a very rare and exceptional phenomenon, where the remedy would be obviously worse than the disease itself and can hardly serve as an encouraging precedent having a contaminating effect. However, be that as it may, I do not feel inclined to remand the case for fresh trial on that score as the appellant has already undergone more than three years out of his total sentence of five years awarded to him under section 379/75, P. P. C. Having gone through the record of the case, I have every reason to believe that the charge was fully brought home to the appellant. The fact, however, remains that the trial Court was definitely biased against him and could not assess the evidence in a disinterested manner. Normally, a sentence of five years' R. I. to a habitual offender for an offence under section 379/75, P. P. C. would not be considered excessive, but may appear to be so in the peculiar circumstances of the instant case, as the trial Court was personally prejudicial against him.

5. There is, however, another illegality in the imposition of restrictions on his movements ordered under section 3 of the Habitual Offenders Act of 1918. A regular procedure has been laid down for making an order under this section, and a separate show‑cause notice had to be issued to the appellant under the mandatory provision of the aforesaid Act. The complete non compliance with this statutory provision makes this part of the sentence illegal and unsustainable. Reliance may be made in this regard on A I R 1921 Lah. 163.

6. Being convinced that the appellant was rightly convicted under section 379/75, P. P. C. I maintain his conviction but reduce undergone by extent of imposition of the appeal is if not required K. B. A Appeal partly accepted.