P L D 1956 Karachi 421 (PLP)

The facts in brief are that there were counter cases of criminal trespass by one Forstner and one Sopariwala. Shortly after that a case was lodged by Sopariwala against Forstner under section 426 ; in that it was alleged that he had cut off the electric supply of the disputed premises. The cases were pending before the Seventh Additional City Magistrate, and were treated as summary cases. Judgment was delivered in the case under section 426, acquitting Forstner. It is alleged by Mr. Moinullah, though denied by Mr. Raymond, that the Magistrate in passing his order of acquittal in the Section 426 case, found that Forstner had been in possession of the premises. An application was, therefore, lodged on behalf of Sopariwala before the Additional District Magistrate for transfer of the case, in which it was alleged that almost all the points especially the lawfulness or unlaw fulness of Mr. and Mrs. Forstner's forcible entry and stay in the ground floor flat of the premises were involved and the learned Magistrate has been pleased to give a decision on them. It was stated that as a result the petitioner could not expect a fair and impartial decision. The Additional District Magistrate, as appears from his order, sent for the remarks of the Magistrate, who stated that "the case may be transferred to some other Court as he has expressed his opinion on merits in his order passed by him in one case and this pending case is also between the same parties in respect of the same property." It is clear, therefore, that the learned Magistrate who tried the case was under the impression that since he had expressed his opinion on merits in the previous case, it was desirable that he should not hear the further cases. This, however, is not the correct position of law. In Crown v. Kamil and others (I S L R 37), a Bench of the Judicial Commissioner's Court held :‑ " The law has respect to the susceptibilities of parties and if there were the smallest indicating of interest or bias on the part of the Magistrate we should not hesitate to transfer the case. But interest or bias is not to be inferred from opinions formed on evidence judicially recorded. Otherwise a~ Magistrate would, after disposing of one of two counter cases be disqualified from trying the other. The opinions recorded by the Magistrate were formed on the evidence recorded in the case he was trying and are, therefore, no indication of any bias." This case has been followed by another Bench in Crown v. Mahram Dhani Bux (5 S L R 264) and by a Single Judge in Ghulam Ali v. Emperor (A I R 1935 Sind 72). Kamil's case noted above follows in In re Vadilal Uttamram (6 Bom. L R 1092), where it is stated " Where a judgment has been formed on evidence judicially recorded, it is impossible to take that judgment as an indication of extra‑judicial bias and prejudice forming ground for the transfer of the case." It is true that cases decided by the Judicial Commissioner's Court of Sind are technically not binding upon us, but we pay great respect to such cases. The cases quoted by Mr. Moinullah to the contrary were cases where the Magistrate concerned had stepped outside the ordinary course of expressing opinion in the case that he was trying and had gone so far as to express a view of guilt of the counter accused. This was the case in Rangasani Gomdan and others v. The Crown (I L R 30 Mad. 223). In another Madras case, In re Sadasiva Gomdar (A I R 1942 Mad. 69), the Magistrate had dismissed the accused 's complaint under section 203 and apparently the Court must have considered that if the accused's version was cut short summarily he had a legitimate apprehension that the Magistrate would not deal with his case with proper consideration. The fact that the Magistrate has stated that he had expressed his opinion on merits in the order passed in the case was not a proper ground either for the Magistrate to seek a transfer from his Court or for the District Magistrate to order such a transfer. The next point is that notice of this application was not given to Mr. Raymond's client, and it is obviously desirable that notice should be given. This point is dealt with at page 174 of the Criminal Circulars of this Court and the learned Additional District Magistrate would do well to consider this Circular. The point arises what should be done in this case. Mr. Raymond has stated, and this is supported by an affidavit, to which there is no reply, that three witnesses were examined by the Court and that if the case is transferred to another Magistrate, this succeeding Magistrate will not be able to hear or see these witnesses, since they have left Pakistan permanently. The case was tried in a summary fashion, and, therefore, the record of the evidence will be sketchy. It is true that they were examined in September 1951, in May 1952, and in August 1952, respectively, and that the Magistrate's memory of what he said and of their demeanour may be weak, but it is obvious he is in a better position to appreciate the evidence than a Magistrate who never saw or heard them. This obviously is a point upon which prejudice has been caused to the applicant by the transfer order. We think, therefore, that the correct course in this case is not to send the application back to the Additional District Magistrate for reconsideration on the merits but ourselves to set aside the transfer and direct that the Seventh Additional City Magistrate should proceed with the cases. This Order applies to Criminal Revision Applications Nos. 289 and 290 of 1952. K. B. A. Order accordingly.