1988 P Cr (PLP)

Learned counsel for the petitioner Malik Azam Rasool states that the impugned order was without jurisdiction, and rather was passed during the existence of the stay order. During the pendency of the criminal cases, respondent moved an application before the learned Sessions Judge, Lahore on 7-5-1986 seeking transfer of the case from the Court of Magistrate, following grounds were urged in the transfer application:-- (1) that at one stage the above case was transferred on the application of the petitioner from the Court of Mr. Zulfiqar Ali Toor then M.I.C. Lahore to the Court of Ch. Abdul Haq, M. I. C. Lahore on whose transfer from Lahore, the case ultimately went to the Court of Mian Safdar Mehmood, A . C. City Lahore; (2) that meanwhile Mr. Zulfiqar Ali Toor, A.C. Lahore has been promoted and appointed as A.C. City Lahore in place of Mr. Safdar Mehmood who has been appointed as A . C . Headquarters, Lahore; (3) that the petitioner does not expect justice and fairplay from Mr. Zulfiqar Ali Toor who has personal friendship with the complainant party and is hostile towards the petitioner/ accused right from the beginning; (4) that the prosecution intentionally and deliberately is not producing their witnesses as their case is baseless and false. The petitioner has moved an application under section 249-A, Cr.P.C. The learned Sessions Judge, Lahore, issued notice to the complainant, and also called for-the comments from the learned trial Magistrate. On 10-5-1986, the order impugned under section 249-A, Cr.P.C. resulting into the acquittal of the respondent was passed, and on the same day, the aforesaid transfer application was withdrawn, and the learned Sessions Judge allowed the withdrawal of the transfer application. It is vehemently argued by Malik Azam Rasool, learned counsel for the petitioner that the transfer application was withdrawn after the impugned order under section 249-A, Cr.P.C. had been passed. This fact is controverted by Peer S.A. Rashid, learned counsel for the respondent. Application dated 10-5-1986 seeking withdrawal of the transfer application runs as under: -- (1) that the petitioner has filed the above application as the learned counsel for the petitioner for personal reasons, had refused to appear, in the Court of learned Magistrate. The petitioner has now engaged a different counsel and, therefore, he does not press the above titled application. The comments which were called for from the learned trial Magistrate have also been perused. Learned Magistrate has stated that on 10-5-1986 at 8-30, he had heard the arguments and these were old cases, and at about 10-05, he came to know about the existence of the stay order. The legal position on the issue is enunciated by full Bench's judgment reported as P L D 1949 Lah. 100 (Karam Ali etc. v. Raja etc.) is that regardless of the communication of the stay order it becomes operative from the moment the order is passed. Considering the case from all angles, the judicial conscience of this Court is not satisfied by manner in which the order impugned has been passed, because the allegations in the transfer application seeking withdrawal of the transfer application run counter to each; other. On 7-5-1986, respondent had no faith in the Magistrate, and on 10-5-1986, he had the faith, and he withdrew the transfer application under section 249-A, Cr.P.C. which was allowed. Circumstances are thus suspicious, therefore, I have no option but to set aside the order impugned. Justice should not only be done, but also seem to have been done. Accordingly, this case is remanded to the Assistant Commissioner, Lahore, who shall decide the matter afresh after hearing both the parties. With these observations, this petition is disposed of. S.G.D/D-23/L Case remanded.