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Criminal Miscellaneous No. 280/T of 1972, decided on 4th December 1972.
-----S. 526-Transfer of criminal case-Magistrate awaiting arrival of complainant's counsel for examination of witness but refusing similar request of accused when his counsel was not present and proceeding with trial-Accused, held, could get apprehension of Court being partial and of not getting justice at Magistrate's hands-Case transferred in circumstances Penal Code (XLV of 1860), Ss. 420, 468 & 471.
A. R. Rata for Petitioner.
Irshad Ahmad for the State.
This is a petition under section 526 of the Code of Criminal Procedure, by one Faqir Muhammad, for the transfer of a case entitled State v. Faqir Muhammad' pending in the Court of Mr. Saeed Akhtar, Section 30-Magistrate, Lahore, to any other Court of competent jurisdiction.
2. The petitioner, who is an accused in the case, alleges, that on 23rd May 1972, when the case was called his counsel was busy in some other Court. He requested the Court to wait for him. This was refused and the Magistrate proceeded to record the statements of the witnesses. After the witnesses had been ex amined, the petitioner again requested the Court to reserve cross examination. This was also turned down and the matter was adjourned for 17th June 1972.
3. When the matter came up before the Court on 17th June 1972, the complainant's counsel was not present, although the petitioner's counsel was there. The complainant requested for the grant of adjournment for some time and the matter was kept pending. When the case was taken up again; the same day, the petitioner's counsel had gone to some other Court and he requested that he should be awaited. The request was not acceded to and the Court was about to proceed to examine the witness, who was present, when it was informed that the petitioner would apply for transfer of the case.
4. A copy of the petition was sent to .the learned Magistrate for parawise comments. These were received and the petition was admitted.
5. I have heard learned counsel for the petitioner and learned counsel for the State. Learned counsel for the State rightly conceded that on 17th June 1972, when the Court awaited the arrival of the complainant's counsel, it should have as well awaited the arrival of the petitioner's counsel. At any rate, the accused could have got an apprehension that the Court was partial and he may not get justice at its hands. In the aforesaid state of affairs, the petition is allowed. The Magistrate directed to send the file of the case to the District Magistrate Lahore, who shall make it over to any other Magistrate serving under him competent to dispose of the same. The succeeding Magistrate shall permit the accused to cross-examine the witnes s, who have already been examined and in case that is not possible, permit the accused to summon them in defence for the purpose of cross-examination.
Petition accepted.
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