P L D 1961 (W (PLP)

Nayat Junejo for Respondent. Date of hearing : 19th December 1960. This is an application under section 526, Cr. P. C., requesting that the case pending against the applicant before the S. D. M., Nawabshah, be transferred to any other Magistrate, as the applicant ‑has reasonable apprehension that he will not be fairly dealt with, if the case is allowed to proceed before the S.D.M. The learned A. A.‑G. for the State has no objection if the case is transferred to any other Magistrate in the same town. The grounds stated in this application are: (1) That the learned Magistrate without waiting for the summons to return, issued bailable warrant against him. (2) That his application to the Magistrate requesting that the investigation papers concerning the complainant with the Karachi Police, be sent for and copies given to him to prepare his defence, has not been considered. (3) That whets he applied to the S.D.M. notifying his intention to him that he would apply for transfer of the case the S. D. M. called upon him to execute a bond in the sum of Rs. 2,000 and not in the sum of Rs. 200 as contemplated by law. (4) That the S. D. M. has shown bias in that he had asked the S. P. to suspend him. The learned counsel for the applicant drops the ground No. 3 as the bond which the applicant was called upon to execute was in the sum of Rs. 200 and not Rs. 2,

000. As for ground No. 4 the learned Magistrate in his remarks has stated that he wrote to the S. P. because there was a complaint made to him that the applicant was threatening the witness with dire consequences if they gave evidence against him. In my opinion this action on the part of the S. D. 1bI. cannot be considered as male fide one, particularly when the complainant' was supported by two witnesses who stated before the S. D. M. that they had been actually threatened. As for ground No. 1 it cannot be denied that the action On the part of the S.D.M. it issuing bailable warrants, was not called for. The record shows that the summons issued by the S. D. M. were returnable on 28‑6‑60 but as the summons were not returned on that day the S.D.M. repeated the summons which were return able on 9‑7‑

60. On this day too the summons were not returned. It is therefore obvious that on that day when he issued the bailable warrants, there was no material on record before the S.D.M. to justify the action under section 90 (b), Cr. P. C., which empowers the Courts to issue warrants against the person com plained against if he failed to appear and the summons "is proved to have been duly served in time to admit of his appearing in accordance therewith, and no reasonable excuse is offered for such failure." In this case, as said above, even the summons ware not returned. The learned S. D. M. does not say that he passed the order on any application made to him by the com plainant that the Sub‑Inspector had been served with summons and that he had failed to attend the Court. This action of the Magistrate s opinion, must causes reasonable apprehension in the mind of the applicant that he will not be fairly dealt with if the case proceeds before him. As for the ground No. 2 it is not asserted by the S. D. M. that he has passed any order on the application and this supports the applicant that his application has not been considered. In his remarks, which he offered before the D. M. the S. D. M. has stated that the papers will be sent for at the stage of defence if the applicant so required. I see no sound reason in postponing the grant of the request made by the applicant to the stage of defence. The applicant might required the papers for the purpose of cross‑examining the prosecution witnesses. His failure therefore to pass an order on the application, and his intention to postpone the grant of his' request to the stage of defence must have naturally caused reasonable apprehension in the mind of the applicant. In view of what is stated above I order that the case be transferred from the file of the S. D. M. to the file of the Sub -Judge and 1st Class Magistrate, Nawabshah for disposal according to law. S. B. Case transferred.