P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑On the 14th of October 1955, Ghulam Qadir Khan, a Pathan landlord pf Multan District, was arrested by the police on the basis of a non‑bailable warrant issued by Mr. A. K. Khalid, Magistrate 1st Class with powers under section 30 of the Code of Criminal Procedure Multan, who was acting as an Emergency Officer for Sutlej Floods in that district. The non‑bailable warrant was issued by Mr. A. K. Khalid because he was of the opinion that Ghulam Qadir Khan had committed an offence under section 182 of the P. P. C. and under some section of the Punjab National Calamities (Prevention and Relief) Act (III of 1952). Subsequently, Mr. Khalid put in a complaint against Ghulam Qadir Khan under section 182 of the P. P. C. while Ghulam Qadir Khan instituted a civil suit against Mr. Khalid claiming damages for his arrest which he alleged was illegal and mala fide. The criminal case against Ghulam Qadir Khan was pending in the Court of Captain Abdul Majid Khan, Additional District Magistrate, Multan, when the present transfer application was put in by the accused. A few days later' a petition (Criminal Miscellaneous No 557 of 1957) was put in by Ghulam Qadir Khan under section 561‑A of the Code of Criminal Procedure with a view to having the proceedings in the criminal case against him quashed. As most of the facts relevant for the purposes of the determination of these two petitions are common, this order will dispose of both of them. Before I take up the petition for transfer, I would dispose of the petition for quashing of the proceedings because if the latter succeeds the former will become infructuous. It was argued by Sheikh Zahur Ahmad, the learned counsel for the petitioner, that the circumstances emanating from the material already on the record show that Mr. A. K. Khalid, who is the complainant in the case under section 182 of the P. P. C., had all through acted in a mala fide manner. It was pointed out that the non‑bailable warrant (Exh. P. C.) issued against Ghulam Qadir Khan on the 14th of October 1955 by Mr. Khalid does not specify what section of the Punjab National Calami ties (Prevention and Relief) Act was applicable, and contended that no provision of that Act could have been invoked by Mr. Khalid to issue the non‑bailable warrant and a warrant could not be issued for an offence under section 182 of the P. P. C. because according to law a summons is to issue if an offence under that section is committed. No doubt, the warrant does not mention the section of the Calamities Act, which was considered by Mr. Khalid to justify the issue of a nonbailable warrant by him, and prima facie there is no section of that Act which could apply to the facts of the case, and an offence under section 182 P. P. C. does not ordinarily call for the issue of a warrant, but as the question whether of not Mr. Khalid had any justification or authority to issue the non bailable warrant is a point to be determined in the civil suit instituted by Ghulam Qadir Khan against Mr. Khalid, I will not give a finding about the legality or otherwise of this act of Mr. Khalid, because anything that I might say must preju dice one or the other party to the suit. The learned counsel for the petitioner then urged that the facts alleged in the complaint do not disclose an offence under section 132 of the P. P. C., but as this contention is based on the assumption that the statement which Ghulam Qadir Khan made before Mr. Khalid on the 15th of October 1955 to the effect that he had passed on information which he himself received to the Magistrate was correct, I cannot accept this contention, because it is not proved yet that that statement was correct. If Ghulam Qadir Khan gave information to Mr. Khalid which was known or believed by Ghulam Qadir Khan to be false, and by giving that false information he intended that Mr. Khalid should do or omit to do anything which he ought not to have done or omitted if true facts were known to him, or to use his lawful power as a public servant to the injury or annoyance of any person, he may be guilty under section 182 of the P. P. C. unless he can bring his case within one of the exceptions, but these are points which can be determined after the evidence of the parties has been taken. Going through the statement which Mr. Khalid made in Court, I found that while under cross‑examination he had stated as under :‑ "I personally felt that the proceedings should be dropped but when I apprised the District Magistrate of the situation on the telephone he told me that if no proceedings were taken against such persons, it would encourage the other alarmists and the situation would become difficult. I accord ingly ordered the prosecution of the accused". and as I was of the view that the question whether the complaint put in by Mr. Khalid could. in view of the fact that he was not willing to put in, be deemed to be a valid complaint, I called upon the parties to address arguments on that point. Mr. S. A. Mahmud, Assistant Advocate‑General, West Pakistan, who appeared to address arguments, on the question of the validity of the complaint, contended that the mere fact that the complaint was filed by Mr. Khalid because the Dis trict Magistrate wanted him to do so would not invalidate the complaint, while Sheikh Zahur Ahmad, the learned counsel for the petitioner urged that as the filing of the complaint was not a free and voluntary act of Mr. Khalid the complaint had no valid existence, and the proceedings taken thereon were illegal. The matter of the complaint for the offence alleged to have been committed by the accused is governed by section 195 of the Code of Criminal Procedure, the relevant part of which reads as under :‑ "195 (1) No Court shall take cognizance‑ (a) of any offence punishable under sections 172 to 188 of the P. P. C., except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b) * * * * * * * (c) * * * * * * * (2) * * * * * * * (3) * * * * * * * (4) * * * * * * * (5) Where a complaint has been made under subsec tion (1), clause (a). by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint, and if it does so, it shall forward a copy of such order to the Court, and, upon receipt thereof, no further proceedings shall be taken on the complaint". The reliance of Sheikh Zahur Ahmad was on Gokulchand Dwarkadas v. The King (AIR1948PC82=PLD1948PC11) and Bapu v. Bapu (I L R 39 Mad. 750). The deci sion of the Privy Council deals with a sanction which was to be given before prosecution could be lodged under Cotton Cloth and Yarn (Control) Order, 1943, while the decision of the Madras High Court was with regard to the provisions of section 195 of the Code of Criminal Procedure as it stood before its amendment in 1923. It appears to me that the Madras case has no. relevancy for the reason, inter alia that it did not deal with the question that arises in the present case and the decision of the Privy Council is not of much assistance when one has to consider a complaint dealt with by clause (a) of subsection (1) of section 195 of the Code of Criminal Procedure. The reason why I take this view with regard to clause (a) of subsection (1) of section 195 of the Code of Criminal Procedure is that the clause is not as strin gent as the provision of law which the Privy Council had to consider. It will be noticed that it is not only the officer directly concerned who is competent to lodge a complaint for the offences under sections 172 to 188 of the P. P. C. alleged by him and that an officer to whom the first officer is subordi nate can also put in the complaint, while it was only the specified authority who could grant sanction for prosecution to the case considered by their Lordships of the Privy Council and this difference in the two provisions is to my mind very material. It is not denied that Mr. Khalid was subordinate to the District Magistrate who could himself have lodged the complaint even if Mr. Khalid had not lodged it and I am of the opinion that the fact that Mr. Khalid consulted the District Magistrate and did what that officer told him to do does not invalidate the complaint. I would hold, therefore, that the mere fact that Mr. Khalid was himself unwilling to institute the complaint does not vitiate the proceedings because he did A in spite of his unwillingness institute the complaint contem plated by clause (a) of subsection (l.) of section 195 of the Code of Criminal Procedure. It was next contended by Sheikh Zahur Ahmad that as the officer on whose complaint the case against his client was started was himself unwilling to prosecute, it was a fit case for quashing the proceedings even if the proceedings were not defective. If this were an ordinary case I would have weighed the circumstances relied upon by the learned counsel for the petitioner with the others, and then determined whether or not I should allow the case to proceed, but in the present case I would reject this contention. My main reason for following this course is that Ghulam Qadir Khan has instituted a civil suit against Mr. Khalid and if the criminal case against Ghulam Qadir Khan fails, his case against Mr. Khalid must gain some strength, and I do not want either of them to be prejudiced by what this Court does. I might add that if the complaint had been defective, I would not have hesitated tot quash the proceedings in the criminal case, but as there is no legal defect in the complaint, I am not prepared to quash the criminal proceedings started thereon. I would, therefore, dis miss the petition under section 561‑A of the Code of Criminal Procedure. This brings me to the transfer application. It is admitted that the Additional District Magistrate, Multan and Mr. Khalid have been posted at the same station for some time, and as Mr. Khalid is a fairly senior Magistrate he and the Additional District Magistrate must have come in quite frequent contact with each other. The mere fact that the trial Magistrate knows a witness in the case rather well would not in an ordinary case perhaps be a sufficient ground for transfer, but in the present case the Magistrate who is the most important witness in the criminal case has been for some time a colleague of the trial Magistrate, and Ghulam Qadir Khan has instituted a civil suit against him claiming damages which, if granted would spell disaster for Mr. Khalid. I might add that I do not think that Mr. Abdul Majid, before whom the criminal case against Ghulam Qadir Khan is pending, will not do justice I but it is well settled that if the accused has a reasonable apprehension that he will not get justice in the Court in which his case is pending, the case should be transferred. My enquiries have disclosed that Mr. Khalid is under orders of transfer to Rawalpindi and it is possible that he has by now left for that station, but that does not make much difference, and, in my opinion, the transfer of the case from Mr. Abdul Majid, Additional District Magistrate, Multan, is indicated. I, therefore, direct that the case against Ghulam Qadir Khan will be heard by the Additional District Magistrate, Mont gomery, who will dispose of it as expeditiously as possible. The result is that while Criminal Miscellaneous Petition No. 557 of 1957 is dismissed, Criminal Miscellaneous Petition No. 536 of 1957 is accepted. A. H. Order accordingly.