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Criminal Revision No. 804 of 1973, decided on 19th November 1973.
‑‑ S. 528‑Transfer of criminal cases‑Principle of natural justice Case transferred' to another Court without notice to, or hearing, opposite‑party‑Order set aside‑Opposite party ordered to be afforded opportunity of being heard.
Ghulam Sarwar v. Muhammad Akhtar P L D 1962 Lah. 437 and Farid son's case P L D 1961 S C 537 rel.
Mian Qurban Sadiq Akram for Petitioner.
Ch. Masood Ahmad Ghuman for Respondent.
Nemo for the State.
Date of hearing: 19th November 1973.
Raja Muhammad Khan petitioner had instituted a complaint under section 145, Cr. P. C. against Ghulam Jilani, respondent in the Court of Assistant Commissioner (Magistrate) Kahuta in respect of their dispute about the possession of a shop who had directed its sealing on the report sought from the local police.
2. In the course of the proceedings that followed the respondent moved the District Magistrate, Rawalpindi under section 528, Cr. P. C. for its transfer to some other Court which was accepted and the case has since been entrusted to another Magistrate (Malik Lal Khan) who is posted at the headquarters vide his order dated the 10th of September 1973, the correctness of which bas been challenged under section 439, Cr. P. C, on the ground of absence of any notice to him. Reliance is placed on Ghulam Sarwar v. Muhammad Akhtar (P L D 1962 Lah. 437) wherein S. A. Mahmood J, (as he then was) after discussing the entire case law including Faridson's case (P L D 1961 S C 537) had held that although there was no provision in section 528, Cr. P. C. for a notice to the other party yet the principle of natural justice makes it necessary that an opportunity shall be afforded to hear him before ordering the transfer in such cases. The learned counsel for the respondent when confronted with this authority conceded that in the present case the complainant petitioner being interested in the possession of the property involved in the case was on a better footing than in other challan cases for cognizable offence where his interest is duly safeguarded by the State itself for the Com mission of that offence. I have, therefore, to accept this petition and setting aside the impugned order direct the District Magistrate, Rawalpindi to give a fresh decision after affording a reasonable opportunity of being heard in the matter.
Petition accepted.
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