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Criminal Miscellaneous No. 108/T of 1983, decided on 20th March, 1984.

---S.174--Show-cause notice for initiation of proceedings under S.174, P.P.C., legality of--Witness, not appearing for evidence on date fixed for purpose although bound down but later on appearing and giving evidence--Show-cause notice for wilful absence under S.174, P.P.C., held, could, not be issued after conclusion of evidence of such witness- order set aside, in circumstances.

---S.526--Transfer of criminal cases--Trial Magistrate initiating proceedings against defence witnesses under Ss. 190 & 174, P.P.C., for giving false evidence and wilful absence--Trial Magistrate also giving positive indication of his assessment of evidence of defence witness--Trial Magistrate, held, surcharged atmosphere with misgivings, leading to reasonable apprehension in minds of accused that they would not get justice--Case transferred, in circumstances.

Mian Muhammad Rashid v. The State 1970 S C M R 694 ref.

Salim Ahmad Malik for Petitioner.

Imtiaz Ahmad for the State.

Rana Altaf Hussain for the Complainant.

This is a petition under section 526, Cr.P.C. by Javed Masih and one other, petitioners, seeking transfer of a criminal case pending against them under section 500/469, P.P.C., from the Court of Mian Saeed Akhtar, Magistrate 1st Class, Sialkot.

2. The petitioners inter alia seek transfer of the criminal case on the ground that during the course of the recording of the evidence of the defence, the trial Magistrate initiated proceedings against Aziz Hamdani D.W.2 under section 190, P.P.C. and Mr. Zaka A. Malik D.W.3 under section 90, Cr.P.C. read with section 174, P.P.C., which has occasioned genuine apprehension in the minds of the petitioners that they will not get justice.

3. The parawise comments of the Magistrate have been received and perused. I have heard arguments of the learned counsel for the petitioners, the complainant and the State. Since complete arguments were addressed on the joint request of the parties, this petition is being admitted and will be disposed of by this order.

4. It is clear from the proceedings that the Magistrate having initiated proceedings against Aziz Hamdani D.W.2 under section 190, P.P.C. for giving false evidence has, during the course-of the proceedings, given positive indication of his assessment of the evidence of the said witness. Such proceedings, as held by the Supreme Court in Mian Muhammad Rashid v. The State 1970 S C M R 694, should be reserved till the conclusion of the trial. Still further, the trial Magistrate after the conclusion of the evidence of Zaka A. Malik D.W.3, issued notice to him under section 90, Cr.P.C. read with section 174, P.P.C. to show cause why proceedings should not be initiated against him. If any such notice had to be issued, it should have been done when Zaka A. Malik D.W.3, who was bound down to give evidence on 14-4-1983, did not appear on that day, but not after he had later appeared and given his evidence. It appears that the Magistrate has surcharged the atmosphere with misgivings leading to a reasonable apprehension in the minds of the petitioners that they will not get justice.

5. In view of the above, this petition is accepted and the criminal proceedings pending against the petitioners under section 500/469, P.P.C. in the Court of Mian Saeed Akhtar, Magistrate Ist Class, Sialkot, are hereby transferred to another competent Court. The District Magistrate, Sialkot, is hereby directed to mark this case for disposal to some other competent Court. The transferee Court shall now take up this case day to day, subject to all just exceptions, and complete the trial at an early date.'

6. The parties are directed to appear before the District Magistrate, Sialkot for taking a date on 4-4-1984.

S. G. D. Case transferred.

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