P L D 1970 Lahore 747 (PLP)

3. The petitioner, who is real brother of Wali Dad, one of the deceased persons, and who had lodged first information report, claims that, he was an interested party in the decision of the application. He had engaged Mr. Zia Mahmood Mirza Advocate as his counsel for resisting the original application. It is alleged by him, that when the petition came up before Muhammad Akram, J. on 1st September 1969, arguments were partly heard and the matter had to be adjourned "for shortage of time". It was postponed to 2nd September 1969. It appeared in the list on the last mentioned date as part‑heard matter, but could not betaken up by Muhammad Akram, J. on that day and it was adjourned to 11th September 1969. Thereafter, on several occasions, it was always shown as part‑heard. However, it suddenly appeared in the supplementary list on 4th November 1969 and was disposed of as indicated above:

4. The contention of the learned counsel for the petitioner is, that since his name did not appear in the supplementary list of 4th November 1969, copy of the list was not supplied to him and hence the impugned order of the transfer of the case was passed behind his back and without hearing him.

5. Notice was issued to the respondent. In answer to it, Mr. M. B. Zaman Advocate (now Advocate‑General) appeared for respondent No. 1 and raised an objection that in view of the observation by the Supreme Court, while granting leave to appeal in Gulzar Hassan Shah v. Ghulam Murtaza and others Special Leave to Appeal No. 240 of 1969, the present petition was incompetent. Therefore, in order to hear the parties at length, the matter was adjourned. It was finally heard on 29th January 1970, when nobody‑put in appearance on behalf of the State and the order was reserved:

6. When information relating to the commission of a cognizable offence is given to an officer of police, under section 154 of the Code of Criminal Procedure, it is his duty to investigate into it and on the completion of the investigation, submit a report to a Magistrate empowered to take cognizance thereof. After the report of the cognizable offence has been registered at a police station, the parties to the case are the State and the person or persons accused of commission of an offence. The complainant in any case, is only a witness. For example, if the accused persons, accused of a cognizable and non‑bailable offence, applies to the Court for grant of bail, it is not necessary for him to implead the informant or the complainant as a party. The only party to be impleaded in such a case, would be the State. Same would normally be the position in case of an application made by the accused for the transfer of his case from one Court to another. His application shall not be incompetent merely because he has not impleaded the informant or the complainant as a party to the application. Undoubtedly, by virtue of the provisions of subsection (3) of section 526 of the Code of Criminal Procedure, in transfer matters, the High Court may act either on the report of the lower Court, or on the application of a party interested or its own initiative. Complainant would be an interested party, but if he without the intervention of the State, files a transfer application, it shall be incumbent on him to implead both the accused and the State as respondents. Since the real parties in the matter which is cognizable are the accused and the State. However, as has been stated above, the same would not be the position, if the applicant in such a matter is an accused.

7. When Zulfiqar Ali accused approached this Court for the transfer of the case, he rightly did not implead Zulfiqar complainant (petitioner) in the instant petition as a party. He merely impleaded the State as such. When my learned brother Muhammad Akram, J. adjourned the petition for transfer on 18th August 1969, while summoning the report of the Court concerned, he stayed further proceedings and issued notice to the State only. No notice was issued by him to the complainant. Mr. Zia Mahmood Mirza, learned counsel for the petitioner in the instant petition, appeared in the Court for the first time on 29th August 1969. The attendance marked does not show, that he was appearing on behalf of the complainant. The attendance is as under:‑ "Mr. M. B. Zaman with Mr. Zia Mahmood Mirza for the petitioner. Mr. Abid Nawaz, Advocate for the State." There is thus nothing in the order‑sheet to show, that Mr. Zia Mahmood Mirza was appearing as a separate party on behalf of the complainant. At any rate, no prayer appears to have been made by him to the Court to make the complainant a party to the proceedings. However, the case was adjourned to 1st September 1960. Since Mr. Mirza claims that the matter was adjourned as part‑heard, I would like to reproduce the entire order dated 29‑8‑1969. It is as follows:‑ "It is 8‑50 a.m. now. I am going to sit in D. B. at 9‑00 a.m. Today is Friday and there is no likelihood of this case being taken up after the D. B. work. I therefore, adjourn this case to 1‑9‑1969." I find, that the learned Judge was on casual leave on the last- mentioned date. There is a note on the file; which in all probability, was made by the Reader in his own hand, which reads as follows:‑ "His Lordship on C. L. on 1‑9‑1969. Adjourned to 2‑9‑1969 being P. H." I do not understand, wherefrom the Reader gathered the impression that the matter was part-heard. However, the difficulty is still not solved, as the order‑sheet of 2nd September 1969, once again shows, that Mr. Zia Mahmood Mirza had put in appearance along with Mr. M. B. Zaman, Advocate on behalf of Zulfiqar accused and not on behalf of the complainant. The only other party present was Mr. Abid Nawaz, Advocate, for the State. The case was adjourned to 12th September 1969, with the consent of the parties. The order does not reveal, that it was part‑heard. Thereafter, comes the crucial date i.e. ‑4th November 1969, when the matter came up before me. On that date Mr. M. B. Zaman, Advocate for the petitioner and Rana Maqbool Ahmad, Advocate, for the State were heard and the impugned order was passed. Thus it appears to me, that Mr. Zia Mahmood Mirza is labouring under some mistake, that the matter was ever heard by my learned brother Muhammad Akram, J. and had been shown as part‑heard. His other grievance, that his name did not appear in the supplementary list, also seems to be misconceived. The petition on behalf of Zulfiqar accused had been preferred by Mr. M. B. Zaman, Advocate, and if his name appeared in the list, the formality has been properly observed. Thus I notice, that at no stage was the complainant a party to the proceedings, which ended by my order dated 4th November 1969.

8. Relying on Syed Kanchan Ali v. Shah Jehan and others (P L D 1962 Dacca 192) and Muhammad Khan and others v. The State and another (P L D 1962 Kar. 864), Mr. Zia Mahmood Mirza vehemently contended, that the informant viz., the petitioner was an interested party and the transfer petition, preferred by the accused could not have been disposed of without hearing him. Unfortunately for him, these cases are not of any help to him. In the first case, which was under section 302 of the Pakistan Penal Code, the transfer application had been filed by an uncle of the deceased (father of the deceased not being alive). The Court held that he was an interested party. It was observed:‑ "A person injured or aggrieved by the crime, a witness in the trial, an informant or a complainant on whose information the machinery of law is set in motion, would, under certain circumstances, come within the description of any party interested within the meaning of section 526, subsections (3) and (8) of the Code. The category stated above is by no means exhaustive. Of course, a Public Prosecutor a com plainant or an accused will always come under the aforesaid description." In the second case, the transfer application had been filed by the first informant and he was held to be an interested party. There is no dispute with the aforesaid proposition of law. It is always open to a person at whose instance the machinery of law has been set in motion to ask for the transfer of the case from one Court to another, but this would not mean, that if an accused, who has been challaned by the police, for the com mission of a cognizable offence, while moving the High Court E for transfer of the case, from one Court to another, must make the complainant or the informant a party. In his case, it would be sufficient that the State, which is prosecuting him, is made a party.

9. I may now advert to another aspect of the case and that is whether after having passed a definite order, I can recall it, or replace it by another order. Mr. M. B. Zaman, who had raised the objection, that I had no such authority, was not available, as he had by then become Advocate‑General and was no longer representing Zulfiqar accused. Mr. Bashir Zafar, who appeared for the accused, could not locate the authority on the basis of which Mr. M. B. Zaman had raised his contention. He, however, brought to my notice a judgment of this Court Muhammad Samiullah Khan and another v. The State (P L D 1962 Lah. 227), which in my opinion would be applicable to the circumstances of the present case. The facts of case briefly were, that Muhammad Samiullah Khan and Muhammad Asadullah Khan petitioners in Criminal Revision No. 507 of 1960, were aggrieved by an order passed by a Magistrate 1st Class at Rahim Yar Khan, under section 145 of the Code of Criminal Procedure, directing the attachment of a Bungalow. It was alleged before the Magistrate that there was eminent apprehension of the breach of peace due to a dispute over property between the petitioners on one side and their uncles Muhammad Ubaidullah Khan etc., on the other side. The petition was admitted to a hearing by Mr. Justice Nazeer Ahmad Mahmood, as he then was. Interim, stay of the execution of the impugned order was granted. When the notice of the admission of the petition and of the interim stay was served on the respondents, they filed Criminal Miscellaneous Application No. 1647 of 1960, alleging that the petitioners had already agitated the same matter before the High Court by means of Criminal Miscellaneous No. 772 of 1960 under section 561‑A of the Code of Criminal Procedure, which was dismissed on 23rd May 1960. The respondents contended that the Criminal Revision No. 507 of 1960, be dismissed and action be taken against the petitioners for contempt of Court inasmuch as they had suppressed information about the presentation and dismissal of their previous application under section 561‑A of the Code of Criminal Procedure and obtained the interim order on false representations.

10. My learned brother Anwarul Haq, J. observed that before dealing with the Criminal Revision on merits, it was necessary to determine, whether it is competent in view of the dismissal of the petitioner's previous Application No. 772 of 1960, in which the parties were the same; the order complained against was the same, that is the order of Mr. Ansari, Magistrate 1st Class, Rahim Yar Khan, dated 4th May 1960, under section 145 of the Code of Criminal Procedure, and the grounds urged for quashing that order were practically the same as had been put forward under section 439 of the Code of Criminal Procedure.

11. After dealing with the contention raised before his. Lordship by the counsel for the petitioners, it was observed:‑ "The expression `judgment' as used in section 369 of the Criminal Procedure Code, obviously includes decisions and orders passed in criminal matters on the merits of the case. If, there fore, the High Court has disposed of a case on merits under section 561‑A of the Criminal Procedure Code, then by virtues of section 369 of the Criminal Procedure Code, it is precluded from reviewing or altering that order by purporting to act under section 439 of the Criminal Procedure Code, or vice versa."

12. The aforesaid dictum applies with full force to the facts of .the instant application. While deciding the transfer application, filed by Zulfiqar accused, the competent parties viz. the accused and the State, were before me. The order was passed after these parties had been heard. I am of the view, therefore, that I can neither recall that order nor decide the matter afresh, when the grounds for transfer are exactly the same, as were between the parties in the petition, preferred by Zulfiqar accused.

13. For the foregoing reasons, therefore, I find no merit in this petition and it is hereby dismissed. A. E./S. A. H. Petition dismissed.