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Criminal Miscellaneous No. 20/T of 1986, decided on 15-2‑1986.

‑‑‑S. 526‑‑Transfer of case‑‑Accused police officers, belonging to different cadre and hierarchy of service, and not superior to Judicial Magistrate before whom complaint sought to be transferred was pending‑‑No material pointed out to justify apprehension that accused would not get a fair trial before Judicial Magistrate‑‑‑ Apprehension stated only a mere conjuncture and unfounded‑‑Application for transfer of case dismissed.

Maulana Ubaid Ullah Anwar v. The District Magistrate, Lahore and others 1969 P Cr. L J 583, Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf P L D 1963 S C 51 and Mashkoor Sabri v. Zafar Mahmood and others 1981 P Cr. L J 546 ref.

Mirza Ata Ullah for Petitioner.

Ch. Abdul Aziz for the State.

This is a petition by Muhammad Asif Ali seeking transfer of his complaint against Ahmed Naseem and six other Police Officers, under section 504/506 /4401427 /365/452 /356/357/342/355/509/109/1481149, P.P.C., pending in the Court of Ch. Sardar Ali Gorsi, Judicial Magistrate, Lahore. It is prayed that the said complaint be transferred for hearing to the Court of Sessions Judge, Lahore.

2. The allegation in the complaint is that Police Inspector Ahsan Salim was prosecuted in a criminal case before Summary Military Court at Lahore. He was convicted but acquitted by the Martial Law Administra tor. On 29‑9‑1985, when the said case was still pending, Police Inspector, Ahsan Salim was allowed bail. Muhammad Asif Ali complainant petitioner being friend of Ahsan Salim went to his house to inquire about him. Some other persons were also present for the same purpose. In the meanwhile, Tariq Salim Dogar, Superintendent Police and other accused (respondents 2 to 7) came to the house of Ahsan Salim. They trespassed into the house, broke the household effects and abused Muhammad Asir Ali complainant and others present there. Ahsan Salim himself was not present at the house. It is alleged that the accused then made the complainant and the witnesses sit in a police van and taken firstly to Civil Lines Police Station and then to Police Station South Cantonment where they were dispossessed of their watches, rings and cash. They were kept in the Police Station for many days whereafter, they were allowed to return to their houses.

The complaint was filed on 15‑1‑1986. It was sent to A.C. City on 16‑1‑1986 who on 17‑1‑1986, recorded the statement of the complainant and adjourned the case for recording of preliminary evidence on 10‑2‑1986. In the meanwhile, the present petition was filed on 28‑1‑1986 seeking transfer of the complaint to the Court of Sessions.

3. I have heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the State. I have also perused the petition for transfer wherein four grounds for transfer of the complaint were taken; firstly, that the accused in the complaint were high‑ranking Police Officers and they will have more influence on the learned trial Magistrate; secondly, they will not let the witnesses of the petitioner appear in Court of the trial Magistrate; thirdly, that the petitioner apprehends unusual difficulty in pursuing his case; and finally that he has lost faith and confidence in the learned trial Magistrate. However, the learned counsel for the petitioner pressed this petition only on one ground that "the accused being high ranking Police Officers, the trial Magistrate will feel embarrassed during proceedings of the hearing of the case." He did not press any other point in support of this petition. The learned counsel for the petitioner referred to Maulana Ubaid Ullah Anwar v. The District Magistrate, Lahore and others 1969 P Cr. L J 583, Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 S C 51 and Mashkoor Sabri v. Zafar Mahmood and others 1981 P Cr. L J 546 in support of his solitary contention.

4. I have considered the contention and the cited judgments. In the case of Maulana Ubaid Ullah Anwar, the complaint was against the District Magistrate being tried by Additional District Magistrate who was directly a subordinate of the District Magistrate. In view of that, the complaint was transferred by the High Court. It is clear that the District Magistrate records annual confidential report of the Additional District Magistrate/ Assistant Commissioners/ Magistrates. It was obviously for this reason that the High Court came to the conclusion that it may be embarrassing for the Additional District Magistrate to hear a complaint against the District Magistrate. In the instant case, the accused‑Police Officers belong to a different cadre of service. They cannot be considered, in any way, superior to the Judicial Magistrate before whom the complaint is pending. They do not belong to the hierarchy of the service to which the Judicial Magistrate belongs. As such, in my view, the judgment in the case of Maulana Ubaid Ullah Anwar is not applicable to the facts of this case.

The judgment in the case of Syed Ali Nawaz Gardezi is also not applicable to the facts of this case. That case was of unusual importance and involved complicated questions of law and facts. Moreover, the cited judgment was again not passed in a transfer application and as such, is of no help to the petitioner in this case.

In the case of Mashkoor Sabri, it was held that if the applicant is able to show that he has reasonable apprehension of not having a fair trial in a Court, the case can be transferred to meet the ends of justice. In the instant case, the learned counsel for the petitioner was not able to point out any circumstance justifying the apprehension that the petitioner would not get a fair trial before the Judicial Magistrate. The complaint was filed on 15‑1‑1986. The statement of complainant was recorded on 17‑1‑1986 whereafter, the complaint was adjourned to 10‑2‑1986 for recording of the preliminary evidence. There was neither B an incident nor was there any occasion for any incident which could give rise to apprehension in the mind of the complainant that he would not get a fair trial from the Judicial Magistrate where the complaint is pending at this moment. The apprehension stated by the learned counsel is a mere conjecture and unfounded. I am sure, the Judicial Magistrate will act in accordance with law and give a fair chance to the complainant to produce evidence in the case.

5. I find no merits in this petition which is dismissed.

M.Y.H. Petition dismissed.

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