P L D 1962 (W (PLP)

Nemo for Respondents. Aziz Ahmad for (other complainant party). The accused‑petitioners, one of whom is a Sub‑Inspector, the other a Head Constable and the rest Foot Constables of Police Station Mochiwala, in the District of Jhang, have applied to this Court under section 526 of the Code of Criminal Procedure for transfer of a murder case pending against them in the Court of Sayyed Sarfraz Hussain Shah, a Magistrate of the 1st Class at Jhang invested with section 30 powers. The prayer is that the case should be transferred from the District of Jhang to some other district as the hostile atmosphere, created against the peti tioners in the former district by certain executive actions taken in the case and also because of the formidable influence of the oppo site‑party, is not conducive to justice and fairness in the decision of this case.

2. It has been contended by the learned counsel for the petitioners that the case was initiated at the instance of the District Magistrate, Jhang himself who had directed the Superintendent of Police vide his letter No. 1106/PB dated the 18th of July 1961 to register a case against the petitioners under section 307 read with section 149, P. P. C. and 302 read with section 149, P. P. C. The police in pursuance of the orders of the District Magistrate after completing the necessary investigation and collecting evidence chose to put in a challan against the accused‑petitioners not under the sections as directed by the District Magistrate but under sections 304/149 and 308/149, P. P. C. This led the Public Prosecutor to move an application on the 2nd of August 1961 before the inquiry Magistrate to change the sections in the challan filed by the police to the original sections as directed by the District Magistrate. From this circumstance, the learned counsel for the petitioners has argued overzealousness on the part of the executive headed by the District Magistrate to prosecute the accused persons on their pre‑conceived notions about the guilt of the accused. I consider that this is a circumstance which does not merit any consideration for the transfer of the case. The Public Prosecutor is quite within his rights to see that the prose cution case is conducted on the proper lines according to the view that he has formed of the case and it does not make any difference if he has done so at the behest of the District Magistrate who is also concerned to see that criminal administration within his jurisdiction is not diverted from the straight path by any extra neous consideration. The prejudice which the learned counsel for the petitioners has tried to read in this action seems to be entirely imaginative. The case happens to be against the police officials on a murder charge and if the District magistrate as the head of the executive and the police administration in the district does not act firmly and independently, the prejudice may be con ceived in the opposite direction.

3. The other circumstances for transfer alleged are that being police officials arraigned against a private local faction represent ed by the Baluch tribe, the entire local atmosphere is surcharged with hostility against them, to the extent that their defence wit nesses including Mst. Sahan, the key witness In the case, do not find it safe for themselves to be able to give evidence in Jhang. This aspect of the case has received attention of my learned brother S. A. Mahmood, J. in Criminal Miscellaneous No. 979 of 1961 on an application made by the witnesses concerned and ht has ordered the Inspector‑General of Police to look into the matter and afford the necessary protection to the petitioner‑witnessed The order of S. A. Mahmood, J. does furnish complete answer to this ground also, urged in the petition and I had at one time thought of rejecting this petition outright. I have, however, found some force in the argument of the learned counsel for the peti tioners that although the actions taken in this case by the District Magistrate and the other executive functionaries may be well merit ed and absolutely sound so far as the legal side is concerned, yet they do disclose overzealousness on their part to create an appre hension in the minds of the petitioners that they will not have a fair and impartial inquiry in the case in the present surcharged atmosphere of Jhang. The case has assumed some importance as the police officials are concerned in this case as accused persons. A counter case is also pending against the other party in respect of the same incident. In view of my feeling that this case and the connected cases be tried 9n a more congenial atmosphere, free from any prejudice, or any taint or feeling of prejudice, I direct that this case be transferred from the district of Jhang for purposes of inquiry to the district of Lyalipur. The District Magistrate, Lyallpur, will please hold the inquiry himself unless his hands are too full with other work in which case he will nominate one of his senior Magistrates preferably an Additional District Magistrate to conduct this inquiry. S. B. Case transferred.