P L D 1962 (W P) Lahore 437 (PLP)

Raja Muhammad Anwar for Respondent No.

1. Muhammad Wahid Naik for Advocate‑General for Respondent No.

10. Date of hearing : 12th February 1962. In respect of an incident which took place on the 6th of July 1961 in village Sogah Dutt in the District of Rawalpindi, Ghulam Muhammad, Ghulam Mustafa and two others were placed on trial under sections 307/34, 395 and 148, P. P. C. in the Court of Khan Abdur Rahim Khan, Magistrate with section 30 powers. One of them was also charged under section 19 (f) of the Arms Act. Haji Ghulam Sarwar petitioner had lodged a counter report against Muhammad Akhtar and others, but as the police took no action thereon, he filed a complaint against Muhammad Akhtar and 8 others under section 307/34, P. P. C., which was also pending in the same Court. Muhammad Akhtar filed an application before the District Magistrate, Rawalpindi, for transfer of those two cases from this Court to some other Court, which was accepted by him by his order, dated the 5th of September 1961. The District Magistrate did not give notice to or hear the accused in the challan case or the complainant in the complaint case before ordering transfer of the cases in an application under section 528, Criminal Procedure Code. Ghulam Sarwar complainant in the complaint case and Ghulam Abbas accused in the challan case have moved two applications (Criminal Revisions Nos. 968 and 969 of 1961), respectively, for setting aside the orders of transfer these applications have been filed under sections 439 read with section 561‑A of the Code of Criminal Procedure.

2. The main ground on which these applications are founded is that the complainant in the complaint case and the accused in the crass case were not given notice .of the applications and were not heard before passing orders of transfer under section 528, Criminal Procedure Code. On behalf of the petitioners reliance is placed on Bakhsha v. Tablu Ram (28 P R 1902 (Cr.)); Sardara and others v. The Crown (A I R 1923 Lah. 380) and Dwarka Das v. Emperor (A I R 1931 Lah. 29). Reid, C. J. in the first case relied on Umrao Singh v. Fakir Chand (I L R 3 All. 749); Tescotta Shekdar v. Ameer Majee, Hafiz Paikar (I L R 8 Cal. 393) and Imperatrix v. Sadashiv Narayan Joshi (I L R 22 Bom. 549), and held that a notice to the other party was necessary before a case could be trans ferred under section 528 of the Code of Criminal Procedure. Broadway, J. in the second case laid down that although strictly speaking it was not necessary to issue a notice before transferring a case, nevertheless the practice had been to do so. Agha Haider, J. In the third case, after referring to Sardara v. The Crown and Bagh Ali v. Muhammad Din observed that be preferred to rely on the principles of natural justice, according to which no order should be passed to the prejudice of a party in his absence and behind his back and that be should be given an opportunity of contesting such an order before it was passed, and relying on Sardara v. The Crown ordered the transfer of the case. Muhammad Daud Khan, J. in an unreported case (Criminal Revision No. 1165 of 1961, Syed Ameer Faridun Gurkani v. Mian Amir‑ud‑Din) set aside an order of transfer which was passed without notice to and without hearing Syed Ameer Faridun Gurkani. In Muhammad Ameer v. The State and another (P L D 1958 Pesh.42), Muhammad Shag, J. held that though it was true that section 526 of the Criminal Procedure Code did not provide for giving of a notice to the opposite‑party, still on general t 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 opportunity of showing cause against its being granted, and that though the authorities had held that issue of a notice was not mandatory and the want of notice did not amount to an illegality, but certainly it did amount to impropriety.

3. On behalf of Muhammad Akhtar respondent reliance is placed on Bagh Ali v. Muhammad Din (A I R 1926 Lah. 156); Babu Ghani v. Fazal Elahi (A I R 1927 Lah. 80); Hari Ram v. Allah Bakhsh and another (A I R 1933 Lah. 385); Chhotey Lal v. Tinke Lal and another (A I R 1935 All. 815); Mst. Khemana v. Dularey (A I R 1941 Oudh 388) and Udhomal Karmumal v. Mst. Majnibai Udhomal and others (A I R 1933 Sind 205). In Bagh Ali v. Muhammad Din and others, Zafar Ali, J. held that a transfer under section 528 was not illegal for want of notice to the opposite‑party. Shadi Lal, C. J. in Rahim Ali v. Fazal Elahi observed that though the order of transfer should not have been made without giving notice to the opposite‑party, he was not prepared to hold that the order was illegal. In Hari Ram v. Allah Bakhsh and others, Broadway, J. held that there was no provision in the Criminal Procedure Code which required a Magistrate acting under section 528 to give notice to the opposite‑party and that the mere fact that the District Magis trate had not done what the High Court in certain cases had laid down as desirable was not sufficient to hold that the order was bad‑in‑law. Ganga Nath, J. in Chhotey Lal v. Tinke Lal and another laid down that though section 528 did not provide for any notice to the opposite‑party, yet it was desirable that a notice should be given to the opposite‑party before an order of transfer was passed; but a mere omission to give a notice would not make the order Illegal, the omission being a mere irregularity not sufficient for setting aside the order of transfer. In Mst. Khemana v. Dularey, Bennett, J. held that there was nothing in section 528 (2), Criminal Procedure Code which made it obligatory on the District Magistrate to issue notice to the opposite‑party, and the District Magistrate had an unfettered discretion in the matter. It might be advisable in some cases that notice should issue, and quite unnecessary in other cases, such as where issue of notice would generally delay further a trial which has already been somewhat delayed by the transfer application. Ferrers, J. C. and Aston, A. J. C. in Udhomal Karmumal v. Mst. Majnibai Udhomal and others laid down that as a general rule a Magis trate would exercise a wise discretion if he issued notice before making an order under section

528. But the want of notice did not amount to such an illegality as would make an order under section 528 ineffectual. The question was one to be decided upon the facts of each case and it would depend largely upon the balance of convenience.

4. The consensus of opinion amongst the learned Judges' is that it is desirable that a notice should be given to the opposite -party before making an order of transfer under section 528 of the Code of Criminal Procedure. In the view to the contrary emphasis is laid on the fact that section 528, Criminal Procedure Code, does not provide for notice to the opposite party. But there are number of sections in the Code of Criminal Procedure which do not provide for notice to the accused and yet no one will deny that notice is necessary under the rule of natural justice that no one shall be condemned unheard, which is too well established to require mention. The point has been force fully illustrated by A. R. Cornelius, Chief Justice of Pakistan in Messrs Faridsons Ltd. Karachi and another v. Government of Pakistan and another (P L D 1961 S C 537 at p. 548). He observed as follows: ‑ "The reason why there is absence of express provision for the accused to be given a hearing under Chapter XXVII is clearly that the rule of natural justice is too well‑established to require mention that no person shall be condemned unheard. The purpose is stated, the powers are given, and as to proce dure, the Court knows its duty." S. A. Rahman, J. in the same case quoted the observa tions of Byles, J. In Cooper v. Wandsworth Board of Works (143 E R 414) that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the Common Law, will supply the omission of the Legislature. Although there is no provision in section 528, Criminal Procedure Code, making it imperative to give a notice to the other party before ordering a transfer of a case, yet the principle of natural justice makes it necessary that a notice shall be given to the party and an opportunity afforded to hear him before ordering the transfer.

5. In Mst. Khemana v. Dularey it was observed that the District Magistrate had an unfettered discretion in the matter of transfer, but with all respect the principle appears to have been stated too broadly. The Magistrate is required by subsection (5) of section 528 to record his reasons for making an order of transfer and his discretion is not so unfettered.

6. Having carefully considered the cases cited above, I am of the view that it is necessary to hear the opposite‑party in an application under section 528 (2) of the Code of Criminal Procedure as distinct from transfers under section 192 (1), Cr. P. C.

7. Learned counsel for respondent No. 1 has further contended that this Court has no power under section ‑439 of the Code of Criminal Procedure to interfere with an order of transfer made by the District Magistrate under section 528, Criminal Procedure Code. He relies on Moti Lal Raniwala v. Rex (A I R 1951 Ajmer 82) and Muhammad Isahuck and another v. Emperor (A I R 1935 Rang. 446). In the first case Atma Charan, J. C. observed that the Judicial Commissioner's Court had no power under section 439 to revise an order of the District Magistrate rejecting an application made under section 528 for the transfer of a case, as the remedy lay by way of an application to that Court under section 526 of the Criminal Procedure Code. In Muhammad Isahuck and another v. Emperor, Dunkley J. observed that a Sessions Judge had no authority to revise an order of a District Magistrate passed under the provisions of section 528, Criminal Procedure Code, any more than the High Court bad any such authority and reliance was placed on Ashu v. Maung Po Kha (A I R 1924 Rang. 100). This was also a case in which an application for transfer made to the District Magistrate was rejected. These two cases are obviously distinguishable. In cases where a transfer application has been dismissed by the District Magistrate resort is to be bad to section 526 of the Code of Criminal Procedure which is a special provision and not to section 439 of the Code of Criminal Proce dure. Ferrers, J. C. and Aston, A. J. C. in Udhomal Karmumal v. Mst. Majnibai Udhomal and others dealt with this argument and observed as follows: ‑ "We are not strictly speaking, asked to transfer any case from one Court to another. We are asked to pronounce that an order making such a transfer was made on improper and inadequate grounds and ought for these reasons to be set aside. Now we think that under section 439 we have ample powers to deal with such an application as this. That section expressly authorises us to exercise any of the powers conferred on a Court of appeal by section

423. By clause (c) the Appellate Court is authorised in an appeal from any order other than those for which the earlier clause provides, to alter or reverse such order. We think, therefore, that we have ample powers to alter or reverse, if we think it necessary, the order made by the Sub‑Divisional Magistrate." Digby, J. in Haji Abdus Subhan v. Gajanan Patrikar (A I R 1943 Nag. 236) followed this decision and repelled the contention that the High Court had no power to revise an order passed by a District Magistrate under section 528 (2), Criminal Procedure Code. There is no manner of doubt that the High Court has ample powers in revision to set aside an order of transfer, which has been made without notice to the opposite‑party. Since exercise of revisional power is discretionary, it may be open to a Judge in a rare case not to interfere with an order of transfer, although) improper and even illegal if he does not consider it necessary in the ends of justice.

8. The orders of transfer in these cases are, in my view, not only irregular and improper, but are illegal. I, therefore, set them aside, and direct that the District Magistrate shall decide the matters afresh after notice to the opposite‑parties. Both the revisions are, therefore, accepted. K. B. A. Petition accepted.