P L D 1962 (W (PLP)

2. Briefly, the facts giving rise to these three applications are as under:

3. It is alleged that on account of elections to the Basic Democracies Council, differences arose between Sardar Bhura Khan, the applicant in Criminal Transfer Application No. 204 of 1961 and his party on the one hand and Agha Amanullah Khan supported by his uncle, Agha Ghulam Nabi Khan Pathan, a former Minister of West Pakistan, on the other resulting in criminal cases between them. On 22‑1‑1961 an incident occurred at the Sultankot Bus Stop, which is on the main road from Jacobabad to Sukkur. It is said that a G. T. S. bus proceeding from Jacobabad to Sukkur halted at 7‑45 a.m. that morning at this bus stop. Dinal Khan son of Bhura Khan wanted to get a seat in this bus and as there was no room an altercation ensued between him and the conductor and the driver of this bus. There was a scuffle between Dinal Khan and his supporters on one hand and the bus conductor and the driver on the other in which the driver and the conductor sustained injuries in respect of which they made a complaint to the Assistant Traffic Manager of the Transport Company at Sukkur, who fearing a strike of the employees of this Transport Company informed the District Magistrate, Sukkur, about this incident. The D. M. Sukkur immediately despatched the D. S. P. and the S. D. M. Shikarpur to the Police Station Sultankot to investigate into the' matter and, in the result, three cases were registered against Bhura Khan and his party. The first was a complaint under section 107, Cr. P. C. against Bhura Khan and nine others in the Court of the S. D. M., Shikarpur. The second was a complaint under section 110, Cr. P. C. against Shahu and six others, all relations or servants of Sardar Bhura Khan. The third was a police challan under sections 332/147, 504, 506, P. P. C. against Ghous Baksh son of Sardar Bhura Khan and five others also in the Court of the S. D. M. Shikarpur.

4. Oil 24‑1‑1961, alt application was presented to the then S. D. M. Shikarpur (Mr. M. M. Jaffri) for bail on behalf of, Sardar Bhura Khan and his co‑accused in the case pending against them under section 107, Cr. P. C. This application was rejected by the learned S. D. M. but on being presented to the learned Sessions Judge, Sukkur bail was allowed by the Sessions Judge to the applicants. In his order allowing bail the learned Sessions Judge Sukkur, mentions that the A. P. P. had admitted before him that there was no order under section 117 (3), Cr. P. C. in this case against the applicants. Against this order of the learned Sessions Judge, Sukkur, the D. M. Sukkur made a direct reference to this High Court for quashing the order of the learned Sessions Judge, Sukkur, granting bail to the applicants/respondent and also for contempt proceedings against Mr. Agha Badruddin, advocate of applicant Bhura Khan and, incidentally, also a first cousin of Sardar Bhura Khan. The reference in respect of the cancella tion of the bail was numbered as Criminal Reference No. 73 of 1961 in this High Court and was disposed of by my learned brother Inamullah, J. whose order appears in The State v. Sardar Sultan and others (P L D 1961 Kar. 582). This reference was rejected and in his order, Inamullah, J. has deprecated the action of the D. M. Sukkur, in approaching this High Court directly and not through his Public Prosecutor. The reference in respect of the contempt proceedings against Agha Badruddin was also disposed of by Bashir Ahmed, J. in this High Court on 4‑12‑1961. In this judgment, too, my learned brother Bashir Ahmed, J. has made some caustic comments concerning the learned D. M. which I will have occasion to refer to later.

5. Sardar Bhura Khan then submitted an application to the Sessions Court, Sukkur, under section 438, Cr. P. C. for quashing the order under section 117 (3), Cr. P. C. alleged to have been made by the S. D. M. Shikarpur, on 24‑1‑1961 against him and his co‑accused. The learned Sessions Judge, Sukkur, called for the R & P from the Court of the S. D. M. Shikarpur, but the D. M. Sukkur, replied on his behalf to say that he had sent the R & P to this High Court. The stand taken by the D. M. was that an order under section 117 (3), Cr. P. C. had in fact been made by the S. D. M. Shikarpur, on 24‑1‑1961 and I find a reference to this both in para. 3 of the order of Inamullah, J. in Criminal Reference No. 73 of 1961, decided on 18‑4‑1961 and in para. 5 of the order of Bashir Ahmed, J. in Criminal Reference No. 329 of 1961 decided on 4‑12‑1961. Thereafter, a tussle seems to have occurred between the D. M. and the Sessions Judge, Sukkur, in respect of which Bashir Ahmed, J. has used these words :‑ "The learned Sessions Judge moved this Court for proceedings in contempt being taken against the District Magistrate. The matter was dealt with independently of these proceedings and is only an indication of the state of feelings of the judicial officers in the locality at the relevant time. The learned District Magistrate, after this refusal to entertain his reference directed against the Sessions Judge, moved the Court against the respondent for action being taken under the Contempt of Courts Act."

6. It is further alleged in the transfer application that a case under the Goondas Act was then filed in the Court of the District Magistrate, Sukkur by the Sukkur Police against Allah Baksh and Dinal Khan, the two sons of Sardar Bhura Khan. It is further stated that on 7‑7‑1961 the three cases against Sardar Bhura Khan and his party were down for hearing that day before the S. D. M. Shikarpur (Mr. Bachal Shah) who had by then succeeded Mr. M. M. Jaffri. The S. D. M. was out on inspec tion that day of the Begari Bund which was then under rapid erosion and apparently he had instructed his, Serishtedar to adjourn all the cases for hearing on his file that day except these three cases against Sardar Bhura Khan and his party. At about 2‑30 p.m. that day the S. D. M. returned to his Court and called up these cases. One Abdul Rehman, the brother of Sardar Bhura Khan had had a heart attack while waiting, in the Court that morning and was thus unable to attend the Court that afternoon in' the upper storey room in which the Court was being held. His presence, however, was insisted upon and he had to be carried upstairs into the Court room. I find from the remarks of the learned Magistrate that these allegations are denied by him but the fact remains that Abdul Rehman died soon after on 12‑7‑1961.

7. There is the further allegation against the trial Magistrate that on 28‑7‑1961 when the accused excluding Abdul Rehman who had since died appeared before the S. D. M., they found that the complainant Mushtaq and the Assistant Traffic Manager of the G. T. S. Company, Mr. Abdus Salam, had gone to the house of the S. D. M. and were coming therefrom. The learned S. D. M. denies this allegation only so far as the Assis tant Traffic Manager is concerned but not with regard to the complainant Mushtaq.

8. There is the final allegation against the trial Magistrate that at the hearing in the case under section 110, Cr. P. C. on 23rd June 1961, Shahu accused fell ill and could not attend the Court. His brother submitted an application on his behalf to the Court supported by an affidavit but the learned Magistrate despite all this cancelled his bail and issued warrants against him.

9. In view of all these allegations contained in these three transfer applications now before me, I am satisfied that a case has been made out not only for the transfer of these three cases from the file of the S. D. M. Shikarpur but indeed for a transfer of these three cases from the Sukkur District. It seems to me that the District Magistrate Sukkur has shown great zeal in the discharge of his duties in this particular case His conduct in despatching the D. S. P. and the S. D. M. Shikarpur, the very day a complaint reaches his ears about this matter to Sultankot Police Station for investigation and the resultant three cases in the Court of the S. D. M. Shikarpur against these applicants is sufficient to arouse a legitimate fear or apprehension in the minds of the applicants/accused as to the fairness or impartiality of the trial against them in that Court. Again, the conduct of the District Magistrate, Sukkur, in approaching this High Court directly for cancelling the bail allowed to Sardar Bhura Khan and the co‑accused in the proceedings against them under, section 107, Cr. P. C. speaks for itself. Thirdly; after the learned A. P. P. had admitted that there was no order on record under section 117 (3), Cr. P. C., the District Magistrate displayed an undue interest in refusing to send the record in these cases to the Sessions Judge, Sukkur, and in making a reference to this High Court for contempt proceedings against Agha Badruddin, the advocate of Sardar Bhura Khan. Dealing with this matter, Bashir Ahmed, J. has expressed himself in these words :‑ "It is difficult, in the circumstances of the case, to resist the feeling that the learned District Magistrate in his zeal to uphold the dignity of a Court subordinate to him has lost sight of the implications of the action which he suggests being taken against the respondent. The aim of all laws is to administer justice between man and man. There can be no efficient performance of that duty unless the judicial system is respected and protected from unwarranted attacks. Where this is true, it is equally certain that in cases which savour of a reasonable complaint, too much insistence on the dignity of Court can never inspire confidence in the tribunals. Purity from within and security from without against unwarranted attacks can alone be held to assure the administration of justice in the real sense of that word."

10. I have, therefore, reached the conclusion that these three cases must not only be transferred from the file of S. D. M. Shikarpur but also from the Sukkur District. Sultankot, where the incident of 22‑1‑1961 occurred, is some 20/25 miles away from the Jacobabad Town and hardly 8‑10 miles from the confines of Jacobabad District. I, therefore, direct that these three cases be transferred to the Deputy Commissioner, Jacobabad and that he should pass them on for trial to any First Class Magistrate within his District duly empowered to do so. S. B. Cases transferred.