1968 P Cr (PLP)

Criminal Procedure Code (V of 1898), S. 526-Transfer case-No process yet issued to accused nor preliminary inquiry concluded-Apprehension of unfair trial, held, cannot be entertained at such stage Application dismissed as too premature. Kati Akhtar Ahmed for Applicants. Mrs. Salima Nasir for the State. Date of hearing: 6th September 1965. This is an application under section 526, Cr. P. C. for the transfer of a complaint which was filed before the Distric Magistrate, Dadu and who had transferred it to the S. D. M sitting at Kotri. The complaint is under sections 384, 395 and 397, P. P. C. and the allegation is that the eight persons who were shown as the accused have been forcibly recovering Rs. per goat from all such persons who transport them on the ferric of the complainant and that in so doing they have bee: threatening them with firearms and so on. After this complain was sent to Kotri before the S. D. M. he decided not to issue process but to hold a preliminary inquiry under section 202, Cr. P. C. i am told by Qazi Akhtar, Advocate that 2 or 3 witnesses were in fact examined in the preliminary inquiry. The accused then came to this Court for the transfer of the case.

2. There are two grounds which have been pressed before me by Qazi Akhtar Ahmad. Firstly, that the learned S. D. M. Mr. Ejaz Ali Talpur had in an earlier proceedings under section 107, Cr. P. C., passed an order purporting to do so under section 117(3), Cr. P. C. by which he sent two of the present peti tioners to custody and directed that they should remain there until the conclusion of the proceedings. This he had done upon the apprehension that parties would clash and there would be a serious breach of peace. This order was quashed by the High Court upon a reference by the Sessions Judge. The learned counsel contended that two of those persons, who are also petitioners in this case, could not expect to 'have a fair trial in the Court of the learned S. D. M. It was next urged that it was the apprehension of the petitioners that after the preliminary inquiry the learned S. D. M. would issue non-bailable warrants to them and they would be kept in jail indefinitely.

3. I have heard the learned counsel for the petitioner and Mrs. Nasiruddin for the State who opposed this application. I am of the opinion that this application must be dismissed upon the short ground that it is too premature. Admittedly, no process had been issued to the accused and even the preliminary inquiry had not been concluded. It is open to the accused not to appear in these proceedings assuming that they are doing so now. That being so, I do not see how as apprehension of an unfair deal can be entertained at their instance at this stage. A transfer under section 526 is made upon satisfaction that the accused have reasonable ground to apprehending that they will not get a fair trial. However, the trial has not yet commenced. The question, therefore, of an unfair trial does not at the moment arise.

4. With regard to the apprehension expressed by Qazi Akhtar Ahmad that the petitioners would be hauled up in jail on the conclusion of the preliminary inquiry, it is sufficient to say that there are enough provisions in the Code for getting redress, assuming that a power is exercised wrongly or improperly by the trying Magistrate. With these observations I dismiss this application.