1987 PLP 3136 (MLD)

Date of hearing: 27th November, 1985. This order will dispose of two transfer applications, registered as Criminal Miscellaneous No. 96/T-85 and Criminal Miscellaneous No. 99/T-85, and writ petition No. 3496 of 1985.

2. On 4-3-1985 Colonel Sadiq Hassan Sheikh, a retired army officer, filed a civil suit against Muhammad Ashraf Sanik, petitioner No. 1 in all the three matters, for the recovery of Rs. 12,68,000 en the foot of five promissory notes allegedly executed by the latter between 30-11-1983 and 1-3-1984. The plaint was rejected on 25-6-1985 by a Civil Judge on the ground that the plaintiff being a money lender did not possess a licence under the West Pakistan Money Lenders Ordinance. It is not known whether Colonel Sadiq Hassan Sheikh has filed any appeal.

3. On 15-4-1985 Colonel Sadiq Hassan Sheikh lodged an F.I.R. (bearing No. 88/85) under sections 406 and 420 of the Pakistan Penal Code at Police Station Gawalmandi alleging that he had advanced e loan of Rs. 2,00,000 for a period of one year in November, 1982 to petitioner No. 1 and his son on account of his previous relations with them. He stated that petitioner No. 1 and his son had made a representation to him that they wanted to invest the money in their business of making gold chains and that they possessed the latest machinery in this regard. By way of security they offered to him the machinery as well as their property on McLeod Road, known as 1-A Patiala Ground. When after the expiry of the loan period he asked for the return of his money they gave him a cheque for Rs. 2,00,000 which was dishonoured by their bank. Later he found that they had misappropriated the amount of the loan and were now intending to leave the country after disposing of the machinery and their other properties.

4. The case was investigated by the police and a challan was put in the Court of Mr. Abdul Razzaq, Magistrate 1st Class, Lahore. The case is still pending and Criminal Miscellaneous No. 96/T-85 relates to this case.

5. On 8-5-1985 Colonel Sadiq Hassan Sheikh moved an application before the Sub-Registrar appointed under the Registration Act, alleging that petitioner No. 1 had forged a non-encumbrance certificate in order to sell off his property located at McLeod Road, Lahore. The Sub?-Registrar held an inquiry and on 5-6-1985 directed the officer incharge of Police Station, Lower Mall, Lahore to register a case. A copy of this order was taken by Colonel Sadiq Hassan Sheikh to the said Police station on 13-6-1985. On that very day a case F.I.R. No. 121/85 under sections 419,420, 468 and 471 of the Pakistan Penal Code was registered. This case is still under investigation. Criminal Miscellaneous No. 99/T-85 relates to this case.

6. Colonel Sadiq Hassan Sheikh is a brother of the District Magistrate, Lahore. It is alleged on behalf of the petitioners in all the three matters that on account of his relationship with Colonel Sadiq Hassan Sheikh, the District Magistrate is intervening in the criminal cases and thus perverting the course of justice. They have cited a number of instances to show how the Magistrates and the local police are being pressurised to harass them. Thus, it is stated that Muhammad Ashraf Sanik was arrested by the police after the registration of the case at Police Station Gawalmandi. While under custody he suffered a mild heart attack. On 17-4-1985 qtr. Abdul Razzaq, Magistrate, released him on bail mainly on medical grounds. The District Magistrate promptly asked for the explanation of the Magistrate and subsequently difficulties were put in his way in obtaining a copy of the bail order. It is also alleged that on 25-4-1985 he was called to the Police Station Gawalmandi and given the option either to pay Rs. 2,00,000 to Colonel Sadiq Hassan Sheikh or suffer the registration of a criminal case against him. When his counsel inquired from the police officer concerned about the prison for his detention he was told by the said police officer that he was helpless and could not disclose under what tremendous pressure he was being made to act. He was not released till midnight when he borrowed the said amount from a relative and paid it to an agent of Colonel Sadiq Hassan Sheikh.

7. The petitioners have alleged that because of the influence of the District Magistrate, petitioner No. 1 was earlier unnecessarily remanded to police custody on the pretext that the sum of Rs. 2,00,000 was to be recovered from him even though it had been expressly advanced for the purpose of investment in his business. Subsequently, after the registration of a case on the report of the Sub-Registrar he was remanded to police custody on the ground that the original of the forged non-encumbrance certificate was to be recovered from him. This was despite the fact that he had informed the Sub-Registrar that he had no knowledge about the preparation or existence of the said certificate. It is also alleged that the normal avenues which are open to a person under arrest to seek relief have been denied to him by the evasive attitudes of the Magistrates in the District. While under custody he was kept in the unhealthy room even though he was diabetic and suffered from a heart condition.

8. In the writ petition it is further alleged that the local police officers have been putting pressure upon the petitioners to pay Rs. 1,00,000 to Colonel Sadiq Hassan Sheikh. A promise is being held out to him that in case the payment is made the case registered at Police Station, Lower Mall will be withdrawn and he will be allowed bail.

9. In their reports both the Superintendent of Police and the officer incharge of Police Station Gawalmandi have denied the allegations that the petitioners are not being treated in accordance with law.

10. It is unnecessary for me to examine the allegations made by the petitioners in detail. It is an accepted principle of law that justice should not only be done but it should also be seen to have been done. If the circumstances are such that they are capable o giving an impression to the accused person ' that he will not get justice from a particular Court a case for transfer is made out. As already pointed out, Colonel Sadiq Hassan Sheikh is stated to be the brother of the District Magistrate. He is the first informant in the case pending in the court of Mr. Abdul Razzaq Magistrate 1st Class, Lahore. The relationship between the District Magistrate and Colonel Sadiq Hassan Sheikh is such that apprehension can reasonably arise in the minds of petitioners in .Criminal Miscellaneous No. 96/T-85 that they will not been able to get justice from the Court of Mr. Abdul Razzaq. I would accordingly withdraw the case from the Court and transfer it to the Court of Dr. Munir Ahmad Mughal, who I am informed is the most Senior Additional Sessions Judge at Lahore, for disposal in accordance with law. Criminal Miscellaneous No. 96/T-85 in accordingly allowed.

11. The case registered at Police Station, Lower Mall is still the investigation stage and no challan has so far been submitted in the Court. Thus, there is no case at present which can be transferred by this Court in respect of the said F.I.R. The occasion for making an appropriate order will arise when a challan has been submitted against she petitioners. It will be open to the petitioners then to move this Court for relief. It is not open to me to give any genera direction that all future cases that may be initiated by Colonel Sadiq Hassan Sheikh against the petitioners be taken cognizance of directly by the Sessions Judge for the purpose of remand, trial and consideration of bail application. Criminal Miscellaneous No. 99/T-85 is disposed of accordingly.

12. As regards the writ petition and the reliefs sought therein I need not give any specific direction to the respondents to act in accordance with law for as public servants that is their primary duty. They have been entrusted with certain functions under different statutes and it is expected of them that they will perform these functions without fear or favour. The relationship of the District Magistrate with Colonel Sadiq Hassan Sheikh should not stand in their way in ensuring that the petitioners in the writ petition are treated in accordance with law and are not denied the reliefs or the remedies which the law permits them to seek or pursue. With these observations I would dismiss the writ petition in limine. I may however add that these observations should not in any way be taken as adverse reflection on the conduct of officers mentioned in the writ petition or treated as a finding on the truth or otherwise of the allegations made in the three petitions. A copy of this order may be sent to the learned Session is Judge, Lahore, who may in view of the relationship of Colonel Sadiq Hassan Sheikh with the District Magistrate. Lahore, consider keeping such application as the petitioners may prefer in the Court, of Sessions on his own file. S.A./M-412/L????????????????????????????????????????????????????????????????????????????????????? Order accordingly.