P L D 1962 (W (PLP)

Sayed Ghazanfar Ali Shah, Asstt. A. G for Respondent. Date of hearing : 4th July 1961. Muhammad Nawaz petitioner has moved an application to this Court under section 561‑A, Criminal Procedure Code, for quashment of certain miscellaneous proceedings started by Mr. Saadat Nawaz Khan, Magistrate First Class, Campbellpur, the nature of which is explained in the sequel.

2. On the 19th of July 1960, the petitioner was challaned by the Shop Inspector, Campbellpur, for the alleged commission of offences under section 12(2) and section 12 (4) of the Trade Employees Act, 1940. The police released him on bail accepting a surety‑bond furnished by one Muhammad Arshad.

3. The security‑bond is missing from the record and it is not possible to ascertain its contents as regards the date on which the petitioner was to appear in Court to stand his trial. After the challan was filed in Court, a bailable warrant was issued on the 1st of September 1960, in the sum of Rs. 1,000, for the appearance of the petitioner on the 31st of October 1960. He could not be served, and a warrant was repeated against him for attendance on the 14th of November 1960. He failed to appear again as the service on the warrant was not effected, and a fresh bailable warrant was issued on the 29th of November 1960. The amount of the bail on this occasion was increased to Rs. 2,

000. The petitioner, however, entered appearance in Court on the same date. Simultaneously one Muhammad Nasim Khan made an application to the Court, complaining that the surety produced by the petitioner before the police, namely, Muhammad Arshad, was not possessed of any property, and was in fact a private servant of the petitioner. On this, the learned Magistrate recorded the state ment of Muhammad Nasim Khan and also of Muhammad Nawaz on the same date. Muhammad Nawaz maintained that his surety, i.e. Muhammad Arshad, owned four houses, two buffaloes and a bullock. The learned Magistrate, however, considered it fit to pursue the matter further and he ordered the attendance of Muhammad Arshad for the 3rd of December 1960. Muhammad Arshad appeared on that date and frankly admitted that he was a personal servant of Muhammad Nawaz petitioner and did not own any property. Muhammad Nawaz thereafter conceded the same position. The learned Magistrate, without taking any action for the substitution of a fresh surety, asked for the production of the original warrant and the bail‑bond. The proceedings dragged on to four hearings between the 5th of December 1960 to the 20th 1960, as the documents could not be traced. On the 20th of December 1960, the Muharrir of the Court reported that the documents in question had not been received in Court, reporting further that they had been handed over to Sher Afzal, the Summary Clerk. The learned Magistrate then instituted inquiries and examined Madad Ali Shah, Foot Constable, Hazro Police Post, who affirmed that he had given the documents to Sher Afzal, the Summary Clerk. The matter was then adjourned to the 22nd of December 1960, and the Madad Muharrir was asked to produce the relevant register which contained the entries about the receipt of the documents. The register was produced which contained the aforesaid entries. The Summary Clerk, Sher Afzal, had also been summoned to appear on that date, viz., the 22nd of December 1960. but he did not tern up being on leave and the inquiry was adjourned to ;aye 24th of December 1960. The evidence of the Summary Clerk was recorded on the 24th of December 1960, and the inquiry was then adjourned to the 28th of December 1960, and was further adjourned to the 31st of December 1960. and again to the 6th of January 1961, without any action, owing to rush of work, as reported by the learned Magistrate. The case was then taken up on the 18th of January 1961 for the examination of M. Nur Ilahi, the Naib Court. He did not attend on the 18th of January and the matter was postponed to the 26th of January 1961. The statement of Nur Ilahi was recorded on that date and the case was adjourned to the 8th of February 1961, when in the meantime, the present petition under section 561‑A, Criminal Procedure Code, was lodged in this Court. It may be remarked here that the petitioner had been attending all the numerous hearings that were fixed in the proceedings, and the Court's orders specifically record his presence on each hearing.

4. It may be noted that while these miscellaneous proceed ings were going on leisurely in Court, no attention was directed to the disposal of the main case which was a petty summons case and triable summarily, the offences involved being punishable on conviction to a fine of Rs. 5 in the maximum for everyday on which the contravention of the relevant provision occurs or continues. The petitioner had appeared in Court on the 29th of November 1960, and if the learned Magistrate, instead of engaging himself in the task of ascertaining the fitness of Muhammad Arshad to be a surety for the petitioner, had adverted to the disposal of the main case, all the proceedings taker" by ham in that respect would have been rendered unnecessary. The purpose of the surety‑bond furnished by the petitioner before the police was to ensure his attendance in Court on the date presumably noted in the bond, or on future dates that might be, fixed by the Court. The petitioner had surrendered himself in Court on the 29th of November 1960, and had not defaulted in appearance on the next date, i.e., the 3rd of December 1960, when it was admitted by all concerned that Muhammad Arshad, the surety, did not own any property. The course for the learned Magistrate then to follow, was to ask for a fresh surety from the petitioner for his appearance in Court, if the case could not be disposed of forth with, and it became necessary to ensure the attendance of the accused on future hearings against the safeguard of a security bond. I fail to understand why the decision of the main case was deferred by the interposition of an inquiry that the learned Magistrate chose to institute in respect of the solvency of the surety and the loss of the warrant and the surety‑bond from the record of the Court. The loss of the documents was an independent matter and did not require the presence of the petitioner in Court for each hearing connected with that matter, and on pure human considerations, if for none other, the Magistrate should have told the petitioner that his presence was not required, until it was needed, and thus saved him from the hardship and agony of attending the Court on each hearing of the protracted proceedings. The removal of the documents from the Court's record or from the police custody was a matter essentially for a departmental inquiry, and unless the Magistrate found that the petitioner had a hand in their removal, he should not have been tied to the inquiry. If the Magistrate had come to the conclusion that the petitioner was concerned in an offence in relation to that, he could have then summoned him for necessary action. I am constrained to remark that the learned Magistrate has acted callously and in complete disregard of his obligations as a Magistrate in not paying heed to the ordinary requirements of his duty to avoid unnecessary trouble and hard ship to the people placed at his disposal in connection with the trial of their cases. Obviously, the inquiry pursued by the learned Magistrate in respect of the solvency of Muhammad Arshad as a surety followed by the inquiry for the loss of the warrant and the surety‑bond in the same connection was irrelevant to the decision of the main case. The learned Magistrate's contention in the report that he bad conducted the inquiry as required by sec tion 202 read with section 501 of the Criminal Procedure Code is ill‑informed. The inquiry became purposeless after it was admitted that Muhammad Arshad was not a man of property. The whole thing assumes an irritating character when it is considered that as many as fourteen hearings were held, firstly, in the matter of discovery of the solvency of the surety, and secondly, for knowing what bad happened to the bond and the warrant, and the petitioner was made to attend each hearing as a silent spectator. The inquiry on the latter point was still pending when the petitioner was driven to the necessity of moving the present application in this Court. The learned Magistrate has acted in a manner, which to my mind, is repulsive to a sense of fairness, and if I may, say so, evinces a lack of sympathy and solicitude for the feelings and liberty of the people committed to his charge for dispensation of justice. In view of what has happened in this case, the apprehen sion of the petitioner that his liberty is not safe in the hands of the learned Magistrate (Mr. Saadat Nawaz) would be quite genuine. I would, therefore, under section 526 of the Criminal Procedure Code, transfer the main case under sections 12 (2) and 12 (4) of the Trade Employees Act pending against the petitioner, from the Court of Mr. Saadat Nawaz, with the direction that the District Magistrate, Campbellpur, will please forward it for disposal to some other Magistrate of competent jurisdiction in Campbellpur.

5. I do not see any point in further pursuing the inquiry in respect of the solvency of Muhammad Arshad. The learned Magis trate's contention in the report that this was necessary as an offence had probably been committed under section 205, P. P. C., read with section 193, P. P. C. by the petitioner cannot be sustained. Section 205, P. P. C. has no application as nobody in this case has falsely personated for another in the matter of furnishing security, and as for section 193, P. P. C., it is doubtful if the petitioner can be prosecuted or should be prosecuted expediently in the interests of justice for perjury on the statement which he has made in his capacity as an accused person regarding the exaggerated financial status of his surety Muhammad Arshad. The petitioner has already suffered considerably on account of the very lengthly proceedings taken by the learned Magistrate in this connection, and his worry on that score must be brought to an end. I would, therefore. quash the proceedings taken by the learned Magistrate in this behalf. As for the inquiry about the loss of the warrant and the bail‑bond, the learned Magistrate (Mr. Saadat Nawaz) may conclude the inquiry and take the necessary action open to him under the law in the light of the conclusions that he reaches on that matter. The petitioner is not to attend that inquiry unless needed and summoned by the learned Magistrate. The learned Magistrate, who will now hear the main case against the petitioner will secure his attendance by due process of law by a summons, or if need be, by a bailable warrant, and he will take steps to dispose of the case with the least possible delay. This case shall be sent to my Lord the Chief Justice as ordered by him on the 22nd of February 1961. A. H. Order accordingly.