P L D 1975 Karachi 222 (PLP)

Abdul Sattar G. Shaikh for Applicant. Usman Ghant Rashid, Asstt. A.‑G. for the State. Aftab Ahmed Akhound for Respondents Nos. 2 to

6. Date of hearing : 24th May 1974. The applicant in this case filed a first information report against respon dents Nos. 2 to 6 as a result of which the latter were sent up by the police and were facing a committal enquiry in the Court of the civil Judge & F. C. M.. Tando Allahyar. One of the accused persons also filed a first information report but this did not result in a police case on account of' which he filed a complaint in the same Court and proceedings in that case also were pending when at the instance of one of the respondents the Additional District Magistrate transferred the police case to the Court of the Civil Judge and A. C. M., Hyderabad. The present is an application asking for retransfer of the case to the Tando Allahyar Court. Since, how ever, in effect, it seeks a reversal of the order of the A. D. M. I have treated it as a revision application.

2. The main, and one is tempted to say almost the only, ground upon, this application for revision is based is that upon the application of the respondents the learned Addl. District Magistrate gave no notice to the petitioner before he transferred the case. In support of the proposition that notice was mandatory learned counsel cited no authorities before me but I would nevertheless agree, both on principle and on authority, that notice was necessary in such a case. It was so held, for instance, in the case of The State v. Nanigopal Basak (P L D 1964 Dacca 274). The question, however, is whether the applicant was entitled to any notice. He was not a party to the proceedings which were between the State and the accused, he himself' being only a witness. No doubt he was the first informant but if it be held that in these circumstances the first informant is entitled to a notice then it can only be upon the basis that he is interested in the prosecution. Either then notice would have to be given to all the witnesses, since the first informant is only one such and this position would be quite absurd, or the person who is, as it were, the genuine complainant, would have to be given notice and this would not necessarily mean the first informant. In a given case the first informant may be one who has. merely formally lodged a first information report, or he may be a person who has merely been informed of the incident and has no real interest in the matter. Indeed the learned Asstt. Advocate‑General questioned the right of the petitioner to maintain this application before me at all. He claimed that he was not a "party interested" within the meaning of section 526(3) of the Cr. P. C. and, therefore, not entitled either to notice before the Additional District Magistrate or to complain of it in this Court.

3. In my view it will always be a question to be decided upon the facts of a particular case as to whether a person is a "party interested" or not. The expression I think is not capable of precise definition and that may well be the reason why the Legislature did not .choose to define it. I am in respectful agreement with some observations made on the question in the case of Kanchan Ali v. Shahjahan (P L D 1962 Dacca 192), which read thus : "In the case before us the injured person is dead. If the father of the deceased had been alive and had made an application for transfer of the case, we would have held that he was certainly a `party inter ested' within the meaning of subsections (3) and (8) of section 526 of the Code. The father‑of the deceased was already dead before the alleged occurrence. The petitioner is the brother of the father and an uncle as well as guardian of the deceased. The petitioner claims that he has been responsible for the upbringing of the deceased and, in fact, he was maintaining the deceased and looking after his ,education. He stands in loco parentis to the deceased and seems to have taken a keen interest in the prosecution of the accused. He is also an important witness in this case. It would be doing violence to the plain meaning of the words in the aforesaid subsections to hold that he was not a party interested in the prosecution. Technically; speaking, the State as the prosecutor in every criminal case and the accused persons, are directly interested in and concerned with the B case. But a witness or the complainant in a case will also be and interested party, though not directly so. A person in the position of the petitioner is, in our view, a party interested within the meaning .of section 526 of the Code. It is difficult to define the category of persons who will come within the meaning of the expression "party interested in the case". It has to be decided on the facts and .circumstances of each case and the position of the complainant with regard to the case itself. As we have already stated, we find no difficulty in holding that the present applicant is competent to main tain the application for transfer. In any event, since we have issued a Rule in this case, we can suo motu pass an appropriate order under section 526 of the Code. This proposition is not contested by learned Advocate for the opposite‑parties in view of the fact that the said section specifically empowers us to do so."

4. In this view of the matter in the instant case I would hold that the .petitioner is a party interested and, therefore, may maintain this application before me.

5. Although, however, notice is necessary the remedy in revision being discretionary this Court is not bound to set aside an order merely on the ground of lack of notice. In Ghulam Sarwar v. Muhammad Akhtar (P L D 1962 Lah. 437), Mahmood, J., held "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."

6. Now in this case it was stated that the counter‑case still remains in the Court at Tando Allahyar and that no application for transfer in regard to it has been filed. At my request, however, the learned Assistant Advo cate‑General made enquiries and has informed me that that case has also been transferred to Hyderabad. This ground, therefore, is unten able.

7. The only other ground stated is that a hearing of the case at Hyderabad instead of Tando Allahyar would be inconvenient. Nothing further is stated by way of detail or any of the facts .which constitute this inconvenience, much less is there any affidavit on the point. Learned counsel for the petitioner, however, orally informs me that parties belong to Chamber which is 25 miles from Tando Allahyar which in turn is 22 miles from Hyderabad. If the case were to be heard at Tando Allahyar they could conveniently come by bus in the morning from Chamber but now they must come the earlier night to Tando Allahyar and then come by bus in the morning from Hyderabad: I cannot possibly accept these facts as being true in the absence of any affidavit, and I can only regret that it has become usual not to set out such facts in affidavits but then to rely upon statements orally made in Court, not as a matter of counsel's personal knowledge but upon its instructions. Even if such statements were made upon personal knowledge it would be at least unfair to the other side who would have no notice of them so as to be able to rebut them if necessary.

8. It is obviously desirable that the two cases be heard together and the counter case has been, as I have already stated, transferred to Hyderabad and in these circumstances I do not see that any useful purpose will be served by my reversing the order of the Additional District Magistrate and, I, there fore, dismiss this application. K. B. A. Appeal dismissed.