1968 P Cr (PLP)

A. Latif Chana for Appellant. S. Ali Nazar for Respondent No.

1. Ilyas Khan for the State. Date of hearing: 26th July 1965. Present application has been filed in revision against the order dated 26‑10‑64 passed by the City and, A. D. M. Karachi (Mr. Salahuddin Qureshi), transferring the Criminal Case No. 444/64 (Dilawar Khan v. Mohsan Imam and others) under section 420/34, P. P. C. from the Court of Mr. G. M. Brohi Lalukhet, Karachi to that of Mr. Syed Zaigham Hussain Moosavi, A. C. M., Karachi mainly on the grounds that no notice was given to the parties and no reason has been assigned for the withdrawal of this case from the Court of Mr. Brohi and its transfer to the Court of Mr. Moosavi. He therefore contends that this order is not merely irregular but is illegal and must be set aside under section 561‑A, Cr. P. C.

2. From the facts placed before me, the accuracy of which is not disputed, it appears that applicant (Dilawar Khan) had filed a complaint under section 420/34, P. P. C. on 5‑10‑64 and the learned Magistrate (Mr. Brohi) after recording his statements under section 200, Cr. P. C. had examined witnesses under section 202, Cr. P. C. and then issued bailable warrants against the accused persons under section 420/34, P. P. C. in the sum of Rs. 1,000 each for their appearance before that Court on 14‑1A‑

64. After a few hearings when the applicant attended the Court of Mr. Brohi on 17‑11‑64 he wits informed about this impugned order transferring this case to that of Mr. Moosavi, A. C. M. and the matter vas then fixed for hearing on 4‑12‑

64. Thereafter the applicant filed Criminal Transfer Application No. 18/65 in this Court requesting that this case be transferred "to the magistrate not subordinate to Mr. Salahuddin Qureshi present City and A, D. M., Karachi" on 11‑1‑

65. His request was summarily refused by an order dated 22‑1‑

65. The present application has been filed under section 561‑A, Cr. P. C. with the request stated above.

3. It was urged on behalf of the applicant that his case has been withdrawn from the Court of Mr. Brohi and transferred to that of Mr. Moosavi without any notice to him and he has not been heard before the impugned order was passed by the City and A. D. M., Karachi under section 528, Cr. P. C. and thereby "defeated the principles of natural justice according to which no order should be passed to the prejudice of the other party, in his absence and behind his back and that he should be given a chance of contesting such an order before it was passed. It is respect fully submitted that in this case no application has been made from the respondents/accused". Some authorities were cited by him in support of this contention. It was observed in a case reported in P L D 1965 S C 90, p. 103 that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result to consequences affecting `the person or property or outer rights of the parties concerned'. This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness". Similar view is expressed in the earlier case by the same Court as reported in Commissioner of Income‑tax, East Pakistan v. Fazlur Rahman (P L D 1964 S C 410).

4. When this application came for admission before my brother Mr. Justice S. A. Mahmood, he had called for the remarks from the City and A. D. M., Karachi in respect of the impugned order passed by him. His statement recites that the Director -General, K. D. A. (It appears that the accused persons are the employees of K.D. A.) had written m latter to the Commissioner of Karachi "complaining therein that warrants of arrest in place ref summons have been issued against the accused persons in this case in the first instance. The Director‑General requested in his letter that an enquiry may be held to find out as to why this method of compelling the attendance of the accused person, who arc: the officials of the K. D. A. has been adopted by the `Trial Court. The letter was marked to District Magistrate by Commissioner of Karachi, which was ultimately marked by him to me for finding out the reasons for so doing." It appears that the learned City and A. D. M., Karachi treated this letter of the Director‑General, K. D. A. as an application sander section 528, Cr. P. C. and thereafter passed the impugned order. While stating the facts it has been pointed out by me that the learned Magistrate (Mr. Brohi) had held preliminary inquiry under section 202, Cr. P. C. and thereafter had issued the process against the accused persons. If they were not satisfied with it they could have taken appropriate steps provided under the Cr. P. C. but instead of taking legal steps the accused parsons have followed the procedure, which is not warranted under the provisions of Criminal Procedure Code. 5 Apparently this impugned order is passed by the City and A. D. M. in exercise of its powers under section 528, Cr. P. C. and not section 192, Cr. P. C. In a case Haji Ghulam Sarwar v. Muhammad Akhtar and others (P L D 1962 Lab. 437) several authorities, for and against, have been discussed i.e. whether notice of such an application was necessary and secondly whether it is necessary or incumbent upon the magistrate to write reasons before h could transfer a case. As a result of the discussion of all those authorities it was held that the order of transfer was not only irregular and improper but illegal and was accordingly set aside. The facts of that case are similar to those of the present case before me. I, therefore, allow the application and set aside the order dated 26‑10‑

64. Petition allowed,