P L D 1955 Lahore 402 (PLP)

SHABIR AHMAD, J.--‑This is an application for transfer of a criminal case presented by a person who made the first information report in a case of murder. She alleges that the police of Campbellpur District are trying to help Ahmad Khan, one of the two persons reported against and she apprehends that .if the case were left for disposal in the Campbellpur District the culprits, or at least one of them, will not be brought to book. It is pointed out that though the police officer who took up investigation in the first instance ex pressed the opinion that both the persons reported against appeared to be guilty, another police officer accepting the evidence that Ahmad Khan was at a place about ten miles away from the scene of occurrence on the night in question, expressed the view that Ahmad Khan was innocent and in the list of prosecution witnesses included the names of three persons who supported the alibi of Ahmad Khan accused before the police. It is also said that the petitioner approached higher police authorities but no action was taken on her applications. There is no opposition to the application by the accused persons but the learned counsel appearing for the Crown opposes it. He contends that though a complainant in a case sent up to Court for trial by the police may have a right to apply for the transfer of the case, an order of transfer should not be passed if the Crown opposes the application. In support of this contention the learned counsel for the Crown relies on Bagh Ali v. Muhammad Din and others (A I R 1926 Lah. 156) and Sardar Shah v. Gurdit Singh and others (A I R 1934 Lah. 612) In Bagh Ali v. Muhammad Din and others it was held by a learned Single judge of this Court that though in a cognizable case sent up for trial by the police a complainant is entitled to apply for transfer under section 526 of the Code of Criminal Procedure, his rights are subordinate to those of the Crown, so that where there is a conflict between the private prosecutor and the Public Prosecutor in the matter of a transfer of a case, the right of the latter must prevail. In Sardar Shah v. Gurdit Singh and others it was said by a learned Single judge that section 526 of the Code of Criminal Procedure is sufficiently wide and comprehensive to enable a person who has lodged the complaint and moved the machinery of the police and the criminal Courts to continue to be a party interested and, therefore, entitled to move the High Court in certain circum stances for the transfer of the case. It was added, however, that where a charge is instituted on a police report and the prosecution is in the hands of the Public Prosecutor, exception ally strong grounds would have to be shown before the High Court would exercise its power to transfer the case at the instance of the private complainant when the responsible authorities are satisfied that there is no ground for with drawing the case from the Court which is hearing it. It appears to me that the powers which this Court possesses under section 526 of the Code of Criminal Procedure cannot be controlled by the Crown which is only a party to a criminal prosecution, and if it appears to this Court that an order of transfer is called for in the interests of justice, the application should not be rejected simply because the strongest of the parties to the case does not want the case to be trans ferred. As worded section 526 of the Code of Criminal Procedure vests the power of transfer of a criminal case in this Court and if after weighing the whole material before it this Court considers that interest of justice require the transfer of a case, the transfer cannot and should not be refused simply because it is the view of the Public Prosecutor or the police that no grounds for transfer exist. A complainant in a cognizable case which is sued up for trial by the police can come to this Court for redress, and if this Court arrives at the conclusion that the complainant entertains a reasonable R apprehension that justice will not be done if the venue of the trial is not changed, this Court will exercise its powers of transferring the case from one Court to another even though the Crown may not desire the transfer. There is no allegation against the Magistrate dealing with the case, and though in an ordinary case that circumstance would be a sufficient ground for refusing to transfer the case, the facts of this case are so peculiar that I consider that it should not be heard in the Campbellpur District, the police of which place the complainant, for the reasons some of Which have been mentioned above, does not trust In view of what I have said above, I direct that the commitment proceedings pending against Mian Husain and Ahmad Khan in the Court of the Sub‑Divisional Magis trate, Pindigheb, be transferred to the Court of the Additional District Magistrate, Rawalpindi, who will finish them with all possible speed. A. H. Case transferred.