P L D 1965 (W (PLP)

Sh. Shaukat Ali for Respondent No.

1. Date of hearing: 13th April 1964. This is a petition by a complainant in a criminal case praying that action be taken for contempt of Court against Ch. Muhammad Yusaf, the then Resident Magistrate at Depalpur, for proceeding with a case and discharging the accused although the petitioner had moved a transfer application in the High Court under section 526 (8) of the Criminal Procedure Code, intimation of which had been given to the learned Magistrate on the 18th of March 1963. The petitioner had earlier intimated his intention to move the transfer application on the 2nd of March 1963, on which date the learned Magistrate had adjourned the case to the 18th of March 1963. The transfer application was filed .in the High Court on the 16th of March 1963 and it came up before me on the 19th of March 1963 on which date I called for a report from the trial Court. The report was put up before me on the 15th of April 1963, and I observed that the transfer application had become infructuous as the accused persons had been discharged in the meantime. It is contended by Mr. Afzal Haider, the learned counsel for the petitioner Abdul Sattar, that under the provisions of subsection (8) of section 526 of the Criminal Procedure Code, read with paragraph 11 of Chapter 26 (A) of Volume III of the High Court Rules and Orders, the trial Court was under a statutory obligation to stay the proceedings until such time as orders of the High Court were received in the transfer application, and, therefore, the action of the trial Court in proceeding with the case on the 18th of March 1963, after having been apprised by the petitioner that the transfer application had been filed in the High Court, amounts not only to a disregard of the relevant provisions of law but also to contempt of the High Court: It is further contended that the learned Magistrate proceeded with the case mala fide for the reason that in the transfer application allegations had been made against him.

3. On behalf of the respondent‑Magistrate, reliance has been placed on paragraph 11 of Chapter 26 (A) of Volume III of the High Court Rules and Orders, as reprinted in 1958 and distributed to the lower Courts in the Province. In this paragraph the instructions to the Magistrates are that if during the period for which the case is adjourned under section 526 (8) no orders are received from the High Court, the Magistrate should proceed with the case. It is submitted by Mr. Shaukat Ali, the learned counsel for the respondent, that there was no question of any mala fide on the part of the trial Court, which merely acted in accordance with the instructions of the. High Court as contained in paragraph 11 referred to above. That the learned Magistrate did indeed act under paragraph 11, mentioned above, is clear from observations contained in the order of discharge passed by him on the 18th of March 1963, as well as from the report submitted by him to this Court on the 25th of March 1963. The same position is reiterated in the written statement filed by him to the present application for contempt of Court. A reference to paragraph 11, as printed in the 1958 Edition of the High Court Rules and Orders, supports the position taken up by the respondent. It is clear, therefore, that it is not a case where the Magistrate can be called to account for contempt of the High Court. He has merely acted on the relevant instructions as contained in the 1958 Edition of the High Court Rules an Orders.

4. I would accordingly dismiss the present application.

5. I find, however, that paragraph 11, as printed in the. 1958 Edition of the High Court Rules and Orders, is not correct. It is merely a reproduction of the paragraph as it stood in 1925,n whereas the same had been subsequently amended by means of al correction slip issued by the High Court on the 31st of March 1945 which enjoined the Magistrates to adjourn the case until the receipt of the orders of the High Court. If this correction slip had been incorporated, it is clear that the Magistrate would not have proceeded with the case in the manner in which he did. Tile Registrar shall examine and report as to why the reprint in 1958 did .not contain the paragraph as corrected up‑to‑date. Steps must also be taken to apprise subordinate Courts about, the missing correction slips which have not been incorporated in the 1958 Edition. K. B. A. Application dismissed.