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Case No. 338 of 1967 (BWP), decided on 28th February 1968

S: 526‑Transfer of case‑Transfer sought on grounds that (i) accused not permitted to cross‑examine witness with regard to capacity of witness to identify accused on mere fact that they had not applied for identification parade; and (ii) objection of defence against production of prosecution witnesses by instalments not given due weight Magistrate‑Grounds, held, genuine‑Transfer of case to another Court directed.

A. R. Tayyib for Appellant.

A. A‑G. for the State.

This is an application under section 526, Criminal Procedure Code, for the transfer of the case pending against the petitioner and others under sections 366/148/149, Pakistan Penal Code in the Court of Mr. Taj Muhammad Khan Lodhi, Magistrate First Class exercising powers under section 30, Cr. P. C.

2. The grounds alleged for the transfer are that :‑

(i) The Court disallowed cross‑examination of Noor Muhammad, complainant, with regard to the identification of the various accused after his statement in Court that he was not able to identify the accused.

(ii) The Court disallowed similarly the cross‑examination of Mst. Allah Rakhi, P. W., with regard to the identification of the accused on the objection raised by the prosecution that the accused were not entitled to cross‑examine the witness on that point as they had not applied for an identification parade being held.

(iii) The prosecution were permitted to produce their evidence by instalments and the objection raised by the defence that at least one set of witnesses should be examined on one day was not given due weight, and

(iv) on the defence objection that the P. Ws. were not being produced in sets the Presiding Officer got annoyed and threatened to cancel the bails allowed to the accused.

3. The report of the learned Magistrate has been considered. He has denied that allegation that he had threatened any of the Accused to cancel their bails. He has also mentioned that the cross‑examination of Noor Muhammad was disallowed on the basis of his admission that he could not identify the various accused. The learned Magistrate has admitted that he had disallowed the cross‑examination of Mst. Allah Rakhi and the reason assigned is not sound. The accused should have been permitted to cross‑examine the witness with regard to the capacity mad of the witness to identify the accused and the mere fact that they had not applied for an identification parade should not have dis entitled them to this line of cross‑examination. The grievance mentioned in the transfer application, that one set of witnesses should have been examined on one occasion, is also genuine and the procedure adopted might have also prejudiced the case of the accused as their line of cross‑examination was disclosed and witnesses appearing on subsequent dates might have been dressed up.

In view of the above I allow this application and direct the learned District Magistrate to transfer this case to another Court of competent jurisdiction.

Application allowed.

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