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Criminal Miscellaneous Petition No. 7 of 1958, deci,:101 011 7th February 1958, for transfer of case under section 526, Criminal P. C.

S. 526 Transfer of case‑Grounds‑Magistrate's conduct of case not inspiring confidence‑Case taken by Provincial Government out of District which was the scene of offence, and set out for hearing in another District for no apparent reason‑‑Convenience of parties Ends of justice requiring transfer‑Powers of Provincial Govern ment to appoint special Magistrates and fix venue for trial to be exercised judiciously‑Criminal Procedure Code (V of 1898), S. 526 (8)‑Provision as to adjournment mandatory.

The petitioners based their application for transfer of their case on the following grounds :‑

(1) A Special Magistrate was appointed by name to hear the case at Mianwali whereas the occurrence had taken place in the District of Peshawar, which resulted in inconvenience to parties, the Provincial Government not indicating what special advantage there was in holding the enquiry at Mianwali.

(2) The Special Magistrate, soon after the challan was put in Court, issued straight way a non‑liable warrant of arrest, ostensibly on his own initiative, against a person whose name was entered in column No. (2) of the challan 7.e. Whose case had not been forwarded by the Police for hearing due to lack of sufficient evidence and the Magis trate issued the warrant at a time when the record of the case was not before him and he had head no evidence.

(3) On being intimated that a transfer application had been moved in the case in the High Court and that the enquiry should therefore be postponed, the Magistrate, instead of adjourning the enquiry adjourned the consideration of the application for adjournment of the enquiry to a future date.

The High Court transferred the case from Mianwali to Peshawar, observing:-

(1) that the case had not been allowed to take its normal course in the Peshawar District ; the petitioners had been chased out of the former N.‑W. F. Province and their case had been entrusted to a particular Magistrate by name, in regard to which the Provincial Government had not taken the public and the parties into confidence what particular facilities the soil of Mianwali was supposed to provide for the enquiry of the case.

The Provincial Government may be quite competent to appoint any person as Special Magistrate, or to fix the venue of enquiry or trial, but the Provincial Government is as much subject to the authority of law as the humblest citizen, and its actions are as much controlled by the supervisory powers of Courts as those of any other person. The Govern ment can pass an order under section 14 subsection (1), Criminal P. C., but this power must be exercised judiciously and with a view to promoting the ends of justice. If it is found that such an order is likely to interfere with the course of justice, High Court will not be slow to exercise its powers conferred upon it by section 526, Criminal P. C.

(2) The apprehension (created by the issue of non‑bail able warrant in the absence of record of case) in the mind of the' accused tray not be fully justified but the fact was there that 'the order had' created such an ‑apprehension. Courts should not only act fairly arid impartially, but they should also conduct themselves in such a manner as to inspire confidence in the parties that they will be dealt with fairly and impartially. What is paramount in the administra tion of justice is this feeling of confidence in the Courts concerned. If Courts permit themselves whether deliberately or inadvertently to act in a manner which is apt to destroy or diminish this confidence, the party affected is justified.

(3) The provision contained in subsection (8) of section 526, Criminal P. C. is mandatory and the Court has no discretion to reject the application, or to postpone its consideration, and is bound to stay further proceedings and afford sufficient time for the submission of transfer application to the High Court. It should have been clear to the Special Magistrate that he had no powers to adjourn the hearing of the appli cation for consideration in the presence of the Prosecuting Inspector. There was no doubt left in the mind of the petitioners, after a non‑b.1ilable warrant of arrest was issued, that they will not have a fair and impartial enquiry at the hand of the Magistrate, but if there was any, it was completely removed by the order under discussion, when the hearing of the application was postponed for the purpose of consi dering it in the presence of the P. I.

Abdul Latif Khan, Abu Talib Shah and Shah Zaman Khan for Petitioners.

Chaudhri Muhammad Ali, Additional Advocate‑General for Respondent (State).

Date of hearing : 7th February 1958.

‑This is an application under clauses (a), (d) and (e) of subsection (1) of section 526, Crimi nal P. C., for the transfer of a case from the Court of Mr. Ikramul Haque, Special Magistrate, Mianwali.

This case has a chequered career. Unfortunately it has riot been permitted to proceed along the normal course, because of too much interference. In order to correctly appreciate the grounds of transfer, it will be pertinent to set out briefly the events, which have ultimately led to the sub mission of the application.

Two persons, Ashoor and Mst. Hassan Zari were shot dead in village Hassan Abad, situated in the jurisdiction of Police Station, Daudzai, District Peshawar, on the night between 16th and 17th July 1957. After the report was lodged and investigation was carried out, one Faqir Muhammad, his son Saifullah, and their master Muhammad Anwar were arrested by the local police. For certain reasons, the Inspec tor‑General of Police ordered the case to be investigated by Chaudhri Muhammad Hussain, A. I. G. (Crimes), who after some investigation submitted a report to the Ilaqa Magistrate, Peshawar on 6th August 1957, that the three arrested persons were innocent, and that the should be discharged. The Magistrate, however did not discharge them, but released them on bail. On the 5th October, Chaudhri Muhammad Hussain was succeeded by Malik Habib ullah as A. I. G., and he took over charge of the investigation. He arrested Alyas and removed him to Campbellpur, where His confession was recorded by a Magistrate on the 21st October. Two other persons Muhammad Afzal and Mst. Hava Jan were arrested on the 31st October, and after a remand to police custody was obtained they were taken to Lahore on the following day, according to the prosecution, for interroga tions. These two persons made no confession. In the mean time a petition for the issue of a writ of habeas corpus was submitted under section 491; Criminal P. C. to this Court on behalf of Alyas, Muhammad Afzal and Mst. Hava Jan. An application for the transfer of the writ petition from this Court to Lahore was filed by Malik Habibullah, A. I. G. but His Lordship the Chief Justice of the High Court rejected it and returned the file to this Court for disposal. It is still pending here before a Division Bench of this Court.

On the 30th November 1957, a notification was issued under the signature of the Deputy Secretary to Government of West Pakistan, Home Department, which has been publish ed in the Gazette of West Pakistan in the following terms :‑

"In exercise of the powers conferred by subsection (1) of section 14, Criminal P. C. 1898, the Governor of West Pakistan is pleased to appoint Mr. Ikramul Haque. Addi tional District Magistrate, Mianwali, to be Special Magis trate at Mianwali, in addition to his own duties, for the trial of the case specified below, with all the powers of a Magis trate of the First Class to try this case:-

Case F.I.R. No. 72, dated 17th July 1957, under section 302, P. P. C., Police Station, Daudzai, District Peshawar.

In exercise of the powers conferred by section 30, Criminal P. C., 1898, the Governor of West Pakistan is pleased to invest Mr. Ikramul Haque, a Magistrate of First Class with powers to try as a Magistrate all offences not punishable with death".

On the 7th/9th December 1957, another notification superseding the previous one was published in the Official Gazette to the following effect :‑

"In supersession of Government, Home Department, Extraordinary notification No. 13/47‑H‑Judi/57/25876, dated the 30th November 1957, and in exercise of the powers con ferred by subsection (1) of section 14, Criminal P. C., 1898, the Governor of West Pakistan is pleased to appoint Mr. Ikramul Haque, Additional District Magistrate at Mianwali, to be Special Magistrate at Mianwali, in addition to his own duties, for the purpose of holding commitment proceedings under Chapter XVIII of the said Code in respect of the case specified below with all the powers of a Magistrate of First Class :‑

Case F. I. R. No. 72, dated the 17th July 1957, under section 302, P. P. C., Police Station, Daudzai, District Peshawar".

It will have been noticed that the first notification pur ported to confer the powers of trial on the Special Magistrate, but it was not long before the mistake was detected, and it was consequently rectified by the second notification, which conferred upon the Special Magistrate only the powers of holding commitment proceedings, under Chapter XVIII Crimi nal P. C.

Since the first notification has been superseded, it may well be ignored. At present we are concerned with the second notification. This notification is not happily worded. Though it does not say in so many words, reading between the lines makes it clear that the Special Magistrate has to hold the commitment proceedings at Mianwali and nowhere else. It is this order of the Provincial Government passed under sub section (1) of section 14 of the Criminal P. C., whereby Mr. Ikramul Haque has been appointed a Special Magistrate to hold enquiry into the case, which has given rise to an appre hension in the mind of the petitioners and has necessitated the transfer application.

The proposed enquiry by Mr. Ikramul Haque, Special Magistrate at Mianwali has been objected to on threefold grounds, namely, (1) that a fair and impartial enquiry cannot be had in the Court of the Special Magistrate, (2) that the enquiry at Mianwali will cause considerable inconvenience and hardship to the petitioners and their witnesses, and (3) that the transfer of the case is expedient for the ends of justice.

As to the first ground, the Special Magistrate himself has provided the petitioners with sufficient cause for apprehension that they are not likely to have a fair and impartial enquiry in his Court. It is important to point out at this stage that the entire record of the case is lying in this Court in connec tion with the habeas corpus petition filed earlier under section 491, Criminal P. C., and the police has submitted only a challan in the Court of the Special Magistrate at Mianwali. According to the police report, only three pereons, namely, Alyas, Muhammad Afzal and Mst. Hava Jan have been chal laned. Out of them, Alyas is in custody, while the other two, Muhammad Afzal and Mst. Hava Jan, are on bail. There is also a fourth person Faqir Muhammad, who has not been challaned, though his name has been entered in column No. 2 of the challan. This column as is evident from its heading, is meant for those persons only who are not challaned, or for absconders whose names are to be entered in the column with red ink. It has been conceded that Faqir Muhammad was never an absconder, and that he is also not challaned along with the other three accused persons whose names are entered in columns Nos. 3 and 4. The relevant section of the Criminal P. C. relating to the case of a person put in column No. 2 and not challaned is section 169, which is to the follow ing effect:‑

"If, upon an investigation under this Chapter, it appears to the officer in charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the for warding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empo wered to take cognizance of the offence on a police report and to try the accused or commit him for trial".

It is not disputed that the action against Faqir Muhammad, namely, the entry of his name in column No. 2 has been taken by the Investigating Officer under this provision of law. It is also obvious that the Investigating Officer took this action, because there was no sufficient evidence or reasonable ground of suspicion to justify the forwarding of Faqir Muhammad to the Court of the Special ‑Magistrate, and yet we find that soon after the challan was put in Court, the Special Magistrate thought it fit to issue straightway a not‑bailable warrant of arrest, ostensibly on his own initiative against Faqir Muhammad though he was not challaned, the record of the case was not before him, he had heard no evidence, and the police lead apparently made no request for the issue of a non‑bailable warrant of arrest. It is contended by the learned Additional Advocate‑General, that the Magistrate was quite competent to issue the warrant, and that therefore this order of the Magistrate does not constitute a good ground for transfer. The question whether the Magistrate was or was not compe tent to issue in the first instance a non‑bailable warrant of arrest against a person not challaned, without examining the record, or hearing the evidence, and without an application by the police, is a debatable proposition, and also not quite relevant to the issue in dispute. For the purpose of the trans fer application the crucial question we are concerned with at present is, whether this preliminary approach to the case by the Special Magistrate is or is not likely to cause appre hension in the mind of the petitioners, that they will not have a fair and impartial enquiry at the hand of this Magistrate.

During the course of the arguments it was alleged on behalf of the petitioners that this Magistrate was so obliging to police that he seldom declined to accommodate them, and that in all probability the warrant was issued at the dictates of the police. In the absence of sufficient evidence in support of the allegation it is not possible to risk an opinion. whether the learned Magistrate does or does not deserve the left‑hand compliments paid to him by the peti tioners. But one thing is quite clear, that he has acted in a manner which has not removed this impression of the peti tioners, and has certainly not enhanced, or ever maintained their confidence in him. The apprehension in the mind of the petitioners may not be fully justified, but the fact is there, that the order has created such an apprehension. It has been ruled time and again consistently by different High Courts and the point cannot be over‑emphasised, that the Courts should not only act fairly and impartially, but that they should also conduct themselves in such a manner as to inspire confidence in the parties that they will be dealt with fairly and impartially. What is of utmost importance and paramount in the administration of justice is this feeling of confidence on the part of the litigant public in the Courts concerned. If Court permit themselves whether deliberately or inadvertently to act in a manner which is apt to destroy or diminish this con fidence, the party affected is justified to ask for the transfer of his case to some other Court.

There is also another factor in the case, which 'teas added to the apprehensions of the petitioners. Syed Abu Talib Shah, counsel for the petitioners, applied on 6th January 1958. inti mating to the 'Court, that an application for the transfer of the case had been submitted to the High Court (Peshawar Bench), and that pending decision of the transfer application proceedings in the Court of the Special Magistrate be stayed. On this application, instead of adjourning the proceedings, the learned Special Magistrate passed the following order :‑

"Present Mr. Abu Talib, Advocate, Peshawar for Muhammad Afzal accused. To come up on 11th January 1958, in the presence of the P. I".

The procedure, which the Court has to follow on presentation of a transfer application is laid down under subsection (8) of section 526, Criminal R. C., which is to the following effect :‑

"If in any enquiry under Chapter XVIII . . . . . any party interested intimates to the Court at any stage before the defence closes its case that he intends to make an applica tion under this section, the Court shall . . . . . . adjourn the case for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon."

The provision is mandatory and the Court has no discre tion to reject the application, or to postpone its consideration, and is bound to stay further proceedings and afford sufficient time for the submission of transfer application to the High Court. It should have been clear to the Special Magistrate that he had no powers to adjourn the hearing of the applica tion for consideration in the presence of the Prosecuting Inspector. There was no doubt left in the mind of the peti tioners, after a non‑bailable warrant of arrest was issued against Faqir Muhammad, that they will not have a fair and impartial enquiry at the hand of the Magistrate, but if there was any, it was completely removed by the order under dis cussion, when the hearing of the application was postponed for the purpose of considering it in the presence of the P. I.

What assistance the learned Special Magistrate could obtain from the Prosecuting Inspector in the matter, is not quite clear to my mind. It being incumbent upon the Magistrate to stay further proceedings, in fact the Prosecuting Inspector could not extricate him from the apparently difficult situation.

Incidentally it may be pointed out here, what attitude the P. I. has adopted in this case. While forwarding the challan of the case to the Court of the Special Magistrate, he made the following endorsement on the challan :‑

"Forwarded to the Court of Sheikh Ikramul Haque, Special Magistrate, with the request that after enquiry the case may be committed to the Court of Session. Alyas accused is in Judicial Lock‑up at Peshawar. The other two accused are, on bail. Muhammad Anwar, Faqir and Saifullah may beg discharged".

It is not quite understandable as to what considerations compelled the P. I. to ask the Special Magistrate to commit the case to the Court of Session. It is not conceivable that he was unaware of section 209, Criminal P. C. It is the duty and responsibility of an Enquiry Magistrate to see,‑ whether he should commit the accused persons to Sessions Court or discharge them, and it is no part of the duty of a Prosecuting Inspector to ask Enquiry Court to commit the case to the Court of Session before the Enquiry Court has commenced the hearing. It is of course a difference matter if, after the evidence is recorded, the Prosecutor argues in favour of com mittal oil the strength of the evidence.

The P. I. did not stop at that. He further recommended that the other set of accused persons, namely, Muhammad Anwar, Faqir Muhammad and aifullah, who had been earlier arrested for the murder by the lozal Police, should be discharged. It will be recalled that the police (Crimes) had already made such a request to the Ilaqa Magistrate here at Peshawar and it was not accepted. These three accused persons, though released on bail, were not discharged. Moreover, long before the challan against the. petitioners was put in the Court of the Special Magistrate, a complaint had been filed against Muhammad Anwar, Faqir Muhammad and Saifullah, and the same is pending in a Court here at Peshawar. One wonders on what grounds the P. I. could ask the Special Magistrate, Mianwali 'to discharge the accused persons in a case, which was pending against them in another District and was not laid before him. The anxiety and courage of the police in this respect can be appreciated, but not its judgment.

The notification issued by the Provincial Government, whereby Mr. Ikramul Haque has been appointed a Special Magistrate to enquire into the case, also deserve special treat ment. The notification does not give any reasons for the appointment of Mr. Ikramul Haque as a Special Magistrate. It is also silent as to why Mianwali has been selected as the venue of enquiry. It is clear from the notification, that the gentleman has been appointed a Special Magistrate, not by virtue of his office, but by his name. What special qualifica tions Mr. Ikramul Haque possesses for enquiry into cases of this type is not disclosed, and remains a mystery. The Pro vincial Government have also not taken the public and the parties into confidence, as to what particular facilities the soil of Mianwali provides for the enquiry of the case. So far as the petitioners are concerned, they have been left simply guessing.

It is not disputed that the Provincial Government is quite competent to appoint any person as a Special Magistrate, of to fix the venue of enquiry or trial, but the Provincial Govern ment is as much subject to the authority of law as the humblest citizen, and its actions are as much controlled by the supervisory powers of Courts as those of any other person.

The Government can pass an order under section 14 of sub section (1), Criminal P. C., but this power must be exercised judiciously and with a view to promoting the ends of justice. If it is found that such an order is likely to interfere with the course of justice, this Court will not be slow to exercise its powers conferred upon it by section 526, Criminal P. C. The law makes no distinction between the Government and an ordinary citizen, both of whom are subject to its authority. Whatever the status of the stronger party. Courts will not permit it to change the course of justice which is supreme, and if any such attempt is made, it will be satisfied. If there is an impression in any quarter that such interference can be tolerated or condoned by this Court, it is time that the impression is removed, and the sooner it is removed the better. As will have been observ ed earlier, every effort has been made to divest the local police and the magistracy of their powers during the investigation stage. As though all that has not satisfied the police concern ed, in the last round the petitioners have been completely chased out of the former Frontier Province and their case has been entrusted to a particular Magistrate by name. I refrain from saying more oil the subject, but the relevant authorities must be reminded that the fate of the petitioner, who face trial on a charge of murder, hangs in the balance. It is a question of life and death for them and tile law requires that even‑handed justice must be done to tile parties, and that neither of them should be placed in an advantageous position over the other, otherwise the ends of justice would be defeated. Further, none of tile parties should be allowed to play with the administration of justice. We must consider the case on a level hi.‑her than that to which it has been unfortunately reduced. It must not be forgotten that it is the unusual activities and the extraordinary interest that have been taken in the case, which are responsible for tile transfer application. Let us put ourselves for a moment in the position of the petitioners and then judge what our feelings would be if we are faced with such a situation. It hardly needs any strenuous efforts to imagine that we will feel the same appre hensions, which the petitioners entertain.

This brings us to the consideration of the second ground, namely, the general convenience of the parties and the witnesses. The occurrence took place in a village situated in the jurisdiction of Police Station, Daudzai in Peshawar District. I he parties and the witnesses belong to the same place. There are two cross‑cases, one against Faqir Muhammad, Saif ullah and Muhammad Anwar pending in the Court of a Local Magistrate, and another in the Court of the Special Magistrate at Mianwali. So far as the petitioners are concerned they have engaged a number of local counsel. It is obvious that if the case is heard at Mianwali, the parties, their witnesses and tile counsel will have to go there, and this is bound to cause the petitioners not only uncalled for inconvenience and hardship, but also considerable loss of money which, I think, in view of their financial status they can ill afford to bear. It is not the learned A. A. G's case that tile enquiry at Mianwali will tend to the general convenience of the parties or their witnesses. He has, however, made an offer in a bargaining spirit that if the transfer application is withdrawn, he would arrange for the enquiry of the case by Mr. Ikramul Haque, Special Magistrate at Peshawar. The offer instead of success fully persuading the petitioners to agree to the suggested course has for obvious reasons confirmed their lurking suspi cions that the services of Mr. Ikramul Haque are indispensable for the purpose of enquiry, in so far as the prosecution is concerned. There is also another technical difficulty, which it will not be possible for the learned A. A. G. to overcome. Tire order under the notification appoints Mr. Ikramul Haque a Special Magistrate at Mianwali. Peshawar District is not within his territorial jurisdiction, and as such be will not be competent to hold the enquiry in Peshawar. When this difficulty was pointed out to the learned Additional Advocate‑General, lie expressed willingness to have the notification, if necessary, amended so as to require the Special Magistrate to hold his sittings in Peshawar‑ But even this suggestion failed to pro duce the desired effect, and one need not wonder, why we don't feel concerned with what other new notification the learned A. A. G. will be liable to bring out, or with the manner in which lie proposes to accommodate the petitioners. Our duty is to examine and consider the position, as it stands at present, namely, the enquiry of tile case by Mr. Ikramul Haque at Mianwali. The question of questions is, whether the trial by the Special Magistrate at Mianwali will tend to the general convenience of the parties and their witnesses. The learned Additional Advocate‑General has been unable for give ally reply, and it is clearly obvious that the balance of convenience is preponderantly in favour of the petitioners.

The last ground, namely, the ends of justice, hardly requires any elaborate discussion, after what has been said above. As already pointed out, I see no earthly reason, nor has tile learned A. A. G. advanced any, as to why the case should not be allowed to be enquired into in tile normal course, and as to how the enquiry by Mr. Ikramul Haque at Mianwali is expedient for tile ends of justice. When all the facts and circumstances of the case are closely examined, it no longer remains a matter for doubt that it is expedient for the ends of justice that, in the absence of any special and compelling circumstances. the case should be allowed to be heard in the normal manner provided by the law.

The cumulative effect of the action taken by tile other side has quite naturally created reasonable apprehension in the mind of the petitioners, that they will not have a fair and impartial enquiry in the Court of the Special Magistrate.. It is also perfectly clear that the enquiry at Mianwali will cause unmerited inconvenience and hardship to the petitioners, their counsel and witnesses, and that the enquiry here in Peshawar will tend to their general 'convenience. I have also no doubt in ‑my mind, that it is expedient for tile ends of justice that the enquiry be held by the Magistrate, who would have held it in the normal course. Consequently, for these reasons I transfer the case from the Court of the Special Magistrate Mr. Ikramul Haque, and direct that the record should be forwarded to the District Magistrate, Peshawar to entrust it for enquiry to the Ilaqa Magistrate, it he is. competent to hold the enquiry, or failing that to some other competent Court iii his District.

The other case against Muhammad Anwar, Faqir Muhammad and Saifullah pending in the Court of a Magistrate at Peshawar (Senior Sub‑Juge) is inter‑connected with the case against Alyas, Muhammad Afzal and Mst. Hava Jan and arises out of the same occurrence. In fact, these are two cross‑cases. An application has been made for the transfer of this case also. For the ends of justice and convenience of tile parties, it is necessary that this case and tile other case should be heard by one and the same Magistrate. Accordingly, this case is also transferred to the same Magistrate, who will hold enquiry in the other case against Alyas, Muhammad Afzal and Mst. Hava Jan.

A. H. Case transferred.

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