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Criminal Miscellaneous No. 6655 of 1968, decided on 10th January 1969.

S. 526(1)(e)(iii) Transfer of case‑Complaint under Ss. 296, 307, 325, 323 & 504, P. P. C. against District Magistrate and City Magistrate filed before Additional District Magistrate‑Complainant apprehending that fair and impartial trial cannot be had in Court of A. D. M. seek ing transfer of case to High Court‑Additional District Magistrate himself in embarrassing situation in having his superior officer and a colleague before him as accused‑Complaint, in circumstances, transferred to High Court.

M. Anwar for Petitioner.

Mian Aslam Riaz Hussain, A. A.‑G. for the State

This is an application by Maulana Ubaid Ullah Anwar, who is prosecuting the District Magistrate, Lahore, the City Magistrate, Lahore, Mr. Muhammad Sharif Cheema, Deputy Superintendent of Police, City Kotwali, Lahore, and a number of Police personnel on the charges under sections 296, 307, 325, 323 and 504 read with section 149, P. P. C., in the Court of Additional District Magistrate, Lahore. The Additional District Magistrate has not yet issued summons as immediately, the applicant informed the Additional District Magistrate, Lahore, that he is applying for a transfer of the case to this Court with a view to its being heard by it in the exercise of its original criminal jurisdiction.

2. The main ground urged for the transfer of this case is that the entire District administration has been accused of offences, the Additional District Magistrate, Lahore, is immediate ly subordinate to the District Magistrate and that the City Magistrate is his colleague, therefore, the applicant apprehends that a fair and impartial trial cannot be had in the Court of the Additional District Magistrate or any Magistrate subordinate to the District Magistrate, Lahore.

3. At the time of preliminary hearing of this petition on 26th December 1968, Mr. M. Anwar relying on Syed Ali Shah Gardezi v. Lt.‑Col. Muhammad Yusuf Khan (P L D 1962 Lah. 558), argued that the case should be transferred to the file of this Court on its original criminal jurisdiction without the issuance of a notice. This argument did not weigh with me and I thought it fit to issue notice to the respondents before passing any order. In obedience to the notice Mr. Aslam Riaz Hussain, Assistant Advocate General, has appeared for the State and the respondents.

4. I have heard the learned counsel for the parties at some length. It must be admitted that the learned Additional District Magistrate, Lahore, himself is in rather an embarrassing situation in having before him as accused persons, a District Magistrate, who is his superior officer, and the City Magistrate, who is work ing as his colleague. It might also unconsciously influence the Additional District Magistrate as his superior officer would be appearing before him.

5. The fact that the Additional District Magistrate is in an h embarrassing position, would be sufficient to justify the applicant's apprehension that the trial might not be all that could be desired. When a party to a case has such an apprehension with reasonable grounds, it has always been considered right that the case in question should be transferred to some other Court The existence of such an apprehension in the mind of one of the parties must militate against a proper trial, if for no other reasons than that it places the party concerned under a serious handicap.

6. The District Magistrate, who was present in Court and the learned Assistant Advocate‑General, in fact did not seriously oppose the transfer. The learned Assistant Advocate General however, suggested that the matter should be inquired into by the Sessions Judge, Lahore. This suggestion was opposed by the learned counsel appearing for the petitioner. It is not possible to act on the suggestion of the learned Assistant Advocate‑General, as it would be seen that the respondents have not been summoned as accused persons so far. In the case; of committal to the Court of Sessions it is the accused person who is committed and that since there is no accused person in law until he is summoned as such, the committal would be bad. I would not like that the accused officers should be committed to the Court of Session without an inquiry as envisaged by law.

7. After giving serious consideration to the matter, I proceed to pass the following order : In the circumstances of the case, I transfer the complaint "Maulana Ubaid Ullah Anwar v. The District Magistrate, Lahore, and others" to the High Court under clause (iii) of section 526 (1), Cr. P. C. Mr. Saleem Mazhar, Sessions Judge, Lahore would record the statement of the com plainant and inquire into the matter as envisaged under section 202, Cr. P. C.

The learned Assistant Advocate‑General wants to join the inquiry, before the process is issued. In my opinion, the accused can be permitted to watch the proceedings and his counsel can be allowed to act as amicus curiae. It must be remembered that in a preliminary inquiry under section 202, Cr. P. C., the defence is not allowed to cross‑examine the complainant's witnesses, but at the same time, the defence is allowed to state his cause, if so desired, and address the Court.

The learned Sessions Judge would submit the report to this Court within a period of one month. The record of this case shall be sent to the learned Sessions Judge. Learned counsel for the parties have been directed to appear before him on the 13th of January 1969.

Complaint transferred.

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