1974 P Cr (PLP)

The main application, i.e., Cr. Misc. No. 314/T 73, has been filed for transfer from the Court of Mr. Jam Jan Muhammad Magistrate Section 30, Khanewal, of a case under section 302/34, P. P. C. In which the petitioner is the complainant and the three respondents are the accused persons. It is urged that the petitioner apprehends denial of justice for the following reasons:‑ (i) That the learned Magistrate who had allowed interim bail to the accused respondent Muhammad Mushtaq on 19th May 1973 valid only up to 26th June 1973 had not cancelled it until 6th July 1973; (ii) that the learned Magistrate had illegally imposed a fine of Rs. 50 on P. W. Sharif for non‑appearance; and (iii) that he had not recorded the evidence correctly in regard to the relationship of the witnesses with the accused persons.

2. On the first point, I find from the order, dated 19th May 1973, (Annexure 'B') that the learned Magistrate had allowed interim bail valid up to 28th June 1973 to accused Muhammad Mushtaq for enabling him to take his Intermediate Annual Examination. 28th June 1973 was however not a date in the case which actually came up for hearing on 30th June 1973, on which date the accused did not appear and it was named by his counsel that he was ill. The learned Magistrate ordered for production of medical certificate which was dine on the next date, i.e. 2nd July 1973. On the subsequent date, i.e., 6th July 1973, Mushtaq was present under custody. The learned Magistrate did not grant bail to that accused there after. In these circumstances, no motive or prejudice can be attributed to the learned Magistrate.

3. As to the second point it is conceded by Mr. Muhammad Yamin, learned counsel for the State, that the learned Magistrate could not have himself imposed the fine on the witness under section 174, P. P. C. but that be could have filed a complaint under section 195, Cr. P. C. The learned Magistrate has admitted the fact that a fine had been imposed under section 174, P. P. C. on the witness, though the relevant order of imposing the fine is not found in the record of the case which has been seen by the counsel for the parties. It is urged that the learned Magistrate has not only acted illegally but has had also no ground to impose the fine. The learned Magistrate has stated in his comments:‑ "The P. W. was given notice of the Calendars. He (P. W.) admitted his fault and confessed his guilt on the first hearing." The witness having admitted his fault, it is prima facie not acceptable that; there did not exist any fact on the basis of which the fine could b: imposed. The only question is whether, if the fine had really born imposed in violation of the procedure prescribed under section 195, Cr. P. C., the same was sufficient to cause a genuine apprehension in the mind of the com plainant that a fair enquiry was not possible before the learned Magistrate. The alleged illegality is not expressly stated in the application wherein the imposition of the fine has been described only as harsh and as showing interest of the learned Magistrate against the petitioner. The explanation submitted by the learned Magistrate is, therefore, silent on the question of the illegality or otherwise of the order. It has also not been shown that the illegality had seen pointed out to the learned Magistrate who, there is thus reason to believe, had acted without an awareness of the prescribed procedure for imposing penalty under section 175, P. P. C. It is well established that a disobedience of statutory provision is not one of the grounds for the transfer of a case. It was held in Muhammad Ashraf v. Zafar Mahmood etc. (P L D 1967 Lah. 1129): "The fact that a Magistrate has passed an order, which has been found to be unsustainable, does not in itself provide a ground for transfer of a case, but where the circumstances attending the passing of such an order are capable of raising an apprehension in the mind of a party that it Is not likely to receive a fair deal in that Court, the interests of justice demand, that the case should be withdrawn from that Court." In the present cast the alleged disobedience of statutory provision is not deliberate. At least no material has been supplied to suggest otherwise. (As already stated, even a copy of the order has‑not been furnished, nor the same found in the record before me). The remedy in these circumstances, for the aggrieved person against the alleged disobedience is by was of appeal or revision and not by transfer of the case to another Court.

4. Coming to the third point, I find that no proper basis has been made for the same. The allegation is of a vague nature and is couched in the following language in ground (c) of the grounds of petition:‑ "The learned lower Court leniently allowed the defence counsel to cross‑examine him at length and it clearly brought on record all relationship of the petitioner with eye‑witnesses. But the learned lower Court was reluctant to write the fact that the accused -respondents are also related to the witnesses because both parties belong to same tribe and they are closely related to each other. This tact was clearly stated by the petitioner but was not brought on the record." This allegation has been flatly denied by the learned Magistrate. It is not the petitioner's case that he had protested against mis-recording of the evidence before the learned Magistrate. In the result, the allegation cannot t be said to have been substantiated.

5. For the aforesaid reasons, the transfer application fails and is accordingly dismissed. The other applications stand automatically disposed of. The record of the Enquiry Court shall be returned immediately. Petition dismissed.