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Criminal Miscellaneous No. 204/Q of 1976, heard on 8th June 1976.
‑‑ S. 561‑A read with S. 528‑Criminal case, transfer of‑Quash ment of proceedings‑‑Order of transfer of case passed behind back of petitioner, without affording him opportunity of hearing and such order based on extraneous considerations‑Order set aside, in circumstances.‑[Transfer of criminal case‑Quashment of proceedings].
Dawarka Dass v. Emperor A I R 1931 Lah. 209 ref.
A. R. Niazi for Petitioners.
Mahmoodul Hassan Qureshi for A.‑G. for the State.
Date of hearing : 8th June 1976.
Muhammad Ilyas and 74 others have filed this petition under section 561‑A, Cr, P. C. for quashment of criminal proceedings pending in the Court of Mr. Abdul Basit Sohail, Magistrate Ist Class, Sammundari, District Lyallpur.
2. The brief facts are that Mst. Tallat Khanum alias Bismillah Begum, got a case registered at Police Station, Tandlianwala on 7‑6‑1974 against the petitioners. The challan was submitted by the police on 9‑10‑1974 against Muhammad Ahmad Khan, Lambardar, petitioner No. 23 only and the remaining petitioners were placed in Column No. 2 of the challan. The challan was submitted in the Court of the Ilaqa Magistrate, Tandlianwala, who summoned only Muhammad Ahmad Khan petitioner as an accused person, The learned Magistrate, Tandlianwala on 10‑7‑1975 examined two witnesses for the prosecution who did not support the prosecution version and two of the witnesses of the occurrence were given up and only formal witnesses remained to be examined. Mst. Tallat was also examined by the said Magistrate on 2‑8‑1975 as P. W. 3.
3. On 7‑8‑1975 Mst. Tallat filed an application under section 528 Cr. P. C. for the transfer of the case from the Court of Syed Tassadaque Husain Bokhari, Resident Magistrate. Tandlianwala, on the ground that she had to appear as a witness and she apprehended danger to her life, so the case be heard at Tehsil Headquarters. That application was made to the Assistant Commissioner, Sammundari, who vide his order dated 11‑8‑1975, transferred the case to the Court of Mr. Abdul Basit Sohail, M. I. C. Sammundari, without any notice to the accused. The Assistant Commissioner did not care to see the record of the case. It is quite clear from the record that Mst. Tallat was examined as PW‑3 on 2‑8‑1975 and thus there was no necessity of transferring the cast on that ground. She definitely made a misrepresentation in the transfer application.
4. I have heard learned counsel for the parties and have gone through the record of the case. Learned counsel appearing for the State frankly conceded that no notice was issued to Muhammad Ahmad Khan petitioner‑accused by the Assistant Commissioner and that the order of transfer of the case was passed behind the back of the petitioner without affording him an opportunity of being heard and, therefore the order is illegal. In this connection learned counsel for the petitioners placed his reliance on a case reported as Dawarka Dass v. Emperor (A I R 1931 Lah. 209) wherein it was held that no order should be passed to the prejudice of a party in his absence and behind his back and that he should be given an opportunity of contesting such an order before ft is passed. Moreover. I find that haphazard disposal of the transfer application (within four days) was not fair and the order appears to have been based on extraneous considerations. The Assistant Commissioner should see that in future he should act in accordance with law.
5. In these circumstances, I would set aside the order of Assistant Commissioner, Sammundari dated 11‑8‑1975 and send back the case to the Resident Magistrate, Tandlianwala, with the direction that he should proceed with the case from the stage it was on 2nd of August 1975 in accordance with law. All subsequent orders after 2nd of August, 1975 are set aside. The petition is disposed of accordingly. The record of the case be sent to the Resident Magistrate, Tandlianwala without any reasonable amount of delay.
Petition allowed.
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