1973 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898), S. 526-Transfer criminal cases-Magistrate acting In manner giving semblance of Idea of his not proceeding in accordance with low-Inquiries, particularly inquiry on complaint under S. 307 entrusted to him--Case transferred. K. H. Khurshid for Petitioner. Raja Muhammad Anwar for Respondents. Khuda Dad Barki for the State. There are two applications ft the Code of Criminal Procedure, tiled by Muhammad Anwar petitioner in two matters pending before Raja Muhammad Akram Magistrate Ist Class, Jhelum, one an inquiry under section 302, P. P. C. on a complaint filed by the petitioner, and other an' inquiry entrusted to him by the District Magistrate under section 176, Cr. P. C. Both these petitions are disposed of this order.

2. The brief facts of the case are that it is alleged Ghulam Mustafa, brother-in-law of the petitioner, was a claimed offender. He, during his arrest was injured, and, on, killed by Qurban Ali Sub-Inspector of Dina.

3. In the inquiry which is proceeding under section before him it is alleged that the learned Magistrate did not take into possession the revolver allegedly used, as a weapon of offence of seven days after the alleged commission of the crime and he has also failed to take into possession the car in which tote deceased was done to death. There was an allegation that the rear window glass of the car was broken. The Magistrate has submitted his report. I have heard the learned counsel for the State as well as Raja Muhammad Anwar Advocate on behalf of respondent No. 1.

4. The first objection raised by the learned counsel for the respondent Qurban Ali, was that an application under section 526, Cr. P. C. could not be competent since an inquiry under section 176 is an executive inquiry. He relied on a judgment from Indian jurisdiction reported as Piara Singh v. The State and another (A I R 1958 Pb. 430) in support of his submission. With due respect to the learned Judges I am afraid I cannot agree with observations made by their Lordships for they have failed to take into consideration two judgments In re: Laxminarayan Timmanna Karki (A I R 1928 Bom. 390) and Advocate-?General v. Maung Chit Maung and another (A I R 1940 Rang. 68) on this point. A Division Bench of this Court in Khuda Bakhsh v. Province of West Pakistan and another (P L D 1957 Lah. 662) has already held that proceedings under section 176 are judicial proceedings in a Court subordinate to this Court and revision is thus competent. From a perusal of the sec?tion itself it is clear that it is a judicial inquiry in which a Magis?trate has to record evidence. The judicial enquiry therefore cannot be given semblance of an executive nature.

5. It was next argued that section 526(8), Cr. P. C. envisages transfer only in cases under Chapter V11I and therefore the jurisdiction of this Court is ousted. There is hardly any force in this submission for subsection (8) of section 526 only deals with the provision of putting an application by an interested person on furnishing a bond for putting such application in the High Court and the action of the Court thereon, that is, that it shall stay its hands with the inquiry if such an information is given. The absence of both these provisions in an inquiry of this nature would not impair the jurisdiction of this Court under section 526 Cr. P. C.

6. On merits therefore if the Magistrate has acted in manner which has given a semblance of an idea that he is no proceeding in accordance with law the inquiry cannot be allowed to be entrusted to him. This will be further injurious if he allowed to proceed with an inquiry on a complaint under section 302, P. P. C.

7. I would therefore direct the District Magistrate, Jhelum to either conduct the inquiry himself or entrust both these inquiries to some other Senior Magistrate in the District. Petition allowed.