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Criminal Miscellaneous No. 464/H of 1969, decided on 14th February 1969.

S. 27(2) ‑Tranfser of case‑Commissioner competent to transfer a case from one Tribunal to another Tribunal within Division District Magistrate incompetently allocating a case pending before existing Tribunal to another newly constituted Tribunal‑Proceedings taken by latter Tribunal, held, incompetent and invalid‑Detenu directed to be set at liberty.

Iftikhar Ahmad Dar for Petitioner.

Nemat Khan for the State.

This is an application by Suleman Khan under section 491, Cr. P. C.

2. Petitioner's son Iftikhar Ahmad was proceeded against by the Kasur Police under the West Pakistan Control of Goondas Ordinance, 1959 (hereinafter referred to as the Ordinance). Mr. Anwar Sharaq, District Tribunal, Lahore, issued non‑bailable warrants for the arrest of Iftikhar Ahmad. Subsequently the District Magistrate, Lahore, transferred the case relating to Iftikhar Ahmad to the Court of Sardar Khalid Mahmud, District Tribunal. Sardar Khalid Mahmud, on 7th October 1968, served Iftikhar Ahmad with a notice to show cause why he should not be declared a Goonda. Iftikhar Ahmad was detained in custody and the detention was extended from time to time.

3. The petitioner contended that the Ordinance did not contemplate the constitution of more Tribunals than one in a. district. He further contended that under the Ordinance the power to transfer a case from one Tribunal to another Tribunal was reserved for the Commissioner and that the order passed by the District Magistrate transferring the case of Iftikhar Ahmad from the Court of Mr. Anwar Sharaq, District Tribunal, to the Court of Sardar Khalid Mahmud, District Tribunal, was invalid. He also urged that the entire proceedings taken by Sardar Khalid Mahmud and the detention of Iftikhar Ahmad v ere consequently illegal. Accordingly he prayed that Iftikhar Ahmad be set at liberty.

4. A report was called for from the District Magistrate, Lahore. The records of the case were also summoned.

5. The report submitted by the District Magistrate slows that originally the Additional District Magistrate, Lahore was acting as District Tribunal and that vide Notification No. Judl 1‑10 (5)/68, dated 29th July 1968, the Governor empowered three other Magistrates to work as Tribunal under the Ordinance. The cases pending in the Court of A. D. M. as District Tribunal were allocated amongst the four Tribunals (Annexure A'). The Order ran as below :‑

"Cases belonging to the respective police stations at present pending before the existing Tribunal are (sic) hereby stand transferred to the other Tribunal according to the allocation made above . . . . . ."

The case of Iftikhar Ahmad stood entrusted to Sardar Khalid Mahmud. Thereafter, reference was made by the District Magistrate to the Commissioner, Lahore, who on 29th October 1 958, passed the following order:

"Necessary action for the allocation of the work under section 27(2) of the West Pakistan, Control of Goondas Ordinance, 1959, asked for in memorandum under reference, is hereby accorded."

In the meantime, on 7th October 1968, Sardar Khalid Mahmud, District Tribunal, issued a notice to Iftikhar Ahmad, (Annexure B').

6. Undisputedly, under section 27(2) of the Ordinance, the Government is comp.‑tent to order transfer of a case from one Tribunal to another in the Province and the Commissioner is competent to order transfer of a case from one Tribunal to .4 another within the Division. The District Magistrate is wholly incompetent to do so. In the instant case, the allocation of. work was made by the District Magistrate. The order of transfer of Iftikhar Ahmad's case to Sardar Khalid Mahmud, therefore, was invalid. In pursuance of this transfer order Sardar Khalid Mahmud issued the notice (Annexure B'), dated 7th October 1968. That order is equally invalid. It is true that on 9th October 1968, the Commissioner purported to have made an order under section 27(2) of the Ordinance. A perusal of the order shows that "Necessary action in the allocation of the work . . . . . . . is hereby accorded." This order does not make any sense. If the intention was to accord necessary "sanction" for the allocation, it could make some sense. But the order passed does not say so. In any case, the incom petent and invalid transfer order passed by the District Magistrate could not be ratified by the Commissioner's order Dated 9th October 1968. The entire proceedings taken by Mr. Khalid Mahmud, District Tribunal, are, therefore, incompe tent and invalid. In consequence the detention of Iftikhar Ahmad is illegal. Accordingly, it is directed that Iftikhar Ahmad be set at liberty forthwith.

Petition accepted.

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