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Criminal Miscellaneous No.20/T of 1983,heard on 12th December, 1984.

‑‑‑S. 526‑‑Transfer of case‑‑Petitioner seeking transfer of case on ground that Magistrate recorded statement of Court‑witness against his promise of not doing so till disposal of revision expected to be filed against his order, refusing de novo trial‑‑Record not showing such promise by Magistrate‑Apprehension of petitioner that he would not get fair trial from Court, due to such fact, held, not genuine in circumstances‑‑Petition dismissed.

‑‑S. 526‑‑Transfer of cases‑‑Allegation that date was announced for disposal of application for de novo trial but case taken up on earlier date‑‑Allegation factually incorrect‑‑No ground for transfer of case, held, was available.

Muhammad Abdullah Bajwa for Petitioner.

M. Akhtar Shabbir, Asstt. A.‑G. for the State.

Sh. Zia Wish for the Complainant.

Date of hearing: 12th December, 1984.

This is an application for transfer of a case pertaining to F.I.R. No. 375, dated 27‑6‑1980 under sections 457, 380 and 411, P.P.C. Police Station, Mozang, Lahore and the other four cases pending against Khair Din petitioner in the Court of Mr. Muhammad Zawar Ali, Magistrate Section 30, Lahore.

2. The facts of the case are that the petitioner Khair Din is being proceeded against in five different criminal trials in the Court of Mr. Zawar Ali, Magistrate Section 30. Initially these cases were being tried by Mr. Sardar Ali Gorsi, Magistrate. These were transferred to Mr. Abdul Majeed, Magistrate Section 30, by this Court on 28‑11‑1981. Later all the five cases against the petitioner were entrusted to Mr. Zawar Ali, Magistrate for trial.

3. In support of this petition, it is contended by the learned counsel for the petitioner that an application for de novo trial was moved before Mr. Zawar Ali, Magistrate. The said application was dismissed by him on 16‑3‑1983. It is contended by the learned counsel that after dismissal of the said application on 16‑3‑1983, the learned Magistrate had observed that he will allow an opportunity to the accused to file a revision against the said order and will not record the statement of Abdul Aziz as Court‑witness till the disposal of the said revision which may be filed by the accused in higher Courts. The precise argument of the learned counsel is that the learned Magistrate proceeded to record the statement of Abdul Aziz as Court‑witness in spite of his earlier promise not to do that till the disposal of the revision petition and this fact gave rise to apprehension in the mind of the petitioner that he will not get justice from the said Court. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate‑General. I have also gone through the petition for transfer in hand. There is nothing on record to show that the Magistrate had at any occasion promised not to record the statement of Abdul Aziz till the disposal of a revision that may be filed by the accused against the, order, dated 16‑3‑1983 and as such it could not be said that any conduct of the trial Magistrate gave genuine apprehension to the accused that he will not get a fair trial from the said Court. The other ground taken up by the petitioner in his petition for transfer is that the Magistrate had announced 12‑12‑1983 as the date for disposal of the application for de novo trial but from the record it appears that the said date was not 12‑2‑1983 but 30‑1‑1983. It is, therefore, sought to be pleaded that the procedure adopted by the Magistrate was improper. I am not impressed by this ground for transfer of the case. In view of the above, I find no merit in this petition which is, accordingly, dismissed.

4. However, I direct that ‑Abdul Aziz C .W.1 will be recalled by the trial Magistrate so that the accused is able to cross‑examine him. The file of this case will be sent back to the trial Magistrate immediately. The petitioner is directed to appear before the Magistrate on 2‑1‑1985.

5. The trial Magistrate is directed to complete the trial before 28‑2‑1985 under intimation to this Court.

M. A. K.

Petition dismissed.

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