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Criminal Miscellaneous No. 620 of 1986, heard on 8th March, 1987.

‑‑‑Ss. 526 & 528‑‑Penal Code (XLV of 1860), Ss. 324 & 325‑‑Transfer of case‑‑Sessions Judge, is competent to withdraw a case from Court of a Magistrate under S. 528, Cr.P.C., but is bound to transfer same thereafter to Court of another Magistrate and could neither keep it on his file nor could make it over to an Additional Sessions Judge or an Assistant Sessions Judge which power was alone vested with High Court under S. 526, Cr.P.C.

Ghazanfer v. State 1983 P Cr. L J 2000; Ch. Muhammad Manzoor v. State 1982 P Cr. L J 702 and Muhammad Yaqoob v. Muhammad Ismail 1972 P Cr. L J 428 rel.

‑‑‑Ss. 526, 528 & 561‑A‑‑Penal Code (XLV of 1860), S. 324/325‑‑Quashing of order of transfer of case‑‑Order of Sessions Judge transferring case from Court of Magistrate to Court of Assistant Sessions Judge challenged on ground of illegality but no allegation whatsoever made against Assistant Sessions Judge except a vague reference that proceedings before him were not only illegal and without jurisdiction but corrupt and malicious' also‑ Such vague allegation, held, could not be considered as sufficient for purpose of transfer of case and impugned order, although suffered from illegality and want of jurisdiction and thus required to be quashed, did not suffer from impropriety and, therefore, was to be maintained in effect‑ Order of Sessions Judge withdrawing case from file of Civil Judge and First Class Magistrate set aside and at the same time case transferred from Court of Civil Judge/First Class Magistrate to Court of Assistant Sessions Judge for disposal under law.

Wali Muhammad for Petitioners.

Hakim Ali for A.A.‑G. for the State.

Date of hearing: 8th March, 1987.

Ghulam Muhammad had lodged F.I.R .under section 324, P.P.C. against the applicants on 25‑1‑1984. The applicants were challaned by the police in the Court of Additional City Magistrate, Shahdadpur. It was transferred by the Sessions Judge Sanghar to the Court of Civil Judge and F.C.M. Shahdadpur. On a transfer application made by the complainant the learned Sessions Judge withdrew the case from the Court of Civil Judge and F.C.M. Shahdadpur and transferred it to that of Assistant Sessions Judge, Shahdadpur. This application under section 561‑A, Cr.P.C. has been made by the applicants to quash the said transfer order.

2. It is contended by Mr. Wali Muhammad the learned counsel for the applicants that an offence punishable under section 325, P.P.C. is triable by a Magistrate in column 8 of Schedule II of Cr.P.C. Hence the Assistant Sessions Judge had no jurisdiction to try the case. It was further contended that under section 528, Cr.P.C. the Sessions Judge could no doubt withdraw the case from the Court of a Magistrate but he can transfer the same only to the Court of any other Magistrate and not to an Assistant Sessions Judge. Reliance was placed in the case of Ghazanfer v. State reported in 1983 P Cr. L J 2000 where it was held that transfer of a case by Sessions Judge from the Court of a Magistrate to the Court of Additional Sessions Judge was not warranted by section 528, Cr.P.C. Muhammad Rafiq Tarar, J., therefore, while accepting the revision petition quashed the impugned order but in exercise of High Court's powers under section 526, Cr.P.C. transferred the case to the Court of Additional Sessions Judge. Reliance was also placed in two earlier decisions of Lahore High Court namely viz. case of Ch. Muhammad Manzoor v. State reported in 1982 P Cr. L J 702 and case of Muhammad Yaqoob v. Muhammad Ismail reported in 1972 P Cr. L J 428. In both these cases it was held by a single Judge of Lahore High Court that provisions of section 528(1‑c), Cr.P.C. do not authorise Sessions Judge. to withdraw the case from any Magistrate subordinate to him and refer the, same to Additional Session3 Judge for trial.

There can be no cavel with the proposition that the Sessions Judge has power to withdraw a case from the Court of a Magistrate under section 528(1‑c), Cr.P.C., but he is bound to transfer it thereafter, to the Court of another Magistrate and cannot keep on it on his file nor can he make it over to an Additional Sessions Judge or a Sessions Judge. This power is vested in High Court alone under the provisions of section 526, Cr.P.C. In the present case the impugned order is challenged on the ground of illegality. No allegation whatsoever has been made against the Assistant Sessions Judge. There is only vague reference in para. 4 of the affidavit that the proceedings before that Court are not only illegal without jurisdiction but, corrupt malicious also'. Such a vague allegation cannot be considered as sufficient for the purposes of the transfer of the case.

I am, therefore, of the clear view that whereas the order of the learned Assistant Sessions Judge suffers from illegality and want of jurisdiction and, therefore, requires to be quashed, it does not suffer from impropriety and is, therefore, is to be maintained in effect. Consequently in exercise of powers of this Court under section 526, Cr.P.C., I consider it necessary to remove the illegality in the said transfer order. In this view of the matter the order, dated 18‑7‑1985 withdrawing the case from the file of Civil Judge and F.C.M. Shahdadpur is set aside. At the same time order is passed under section 520, Cr.P.C. transferring the case from the file of Civil Judge and F.C.M. Shahdadpur to that of Assistant Sessions Judge, Shahdadpur for disposal according to law. The learned Assistant Sessions Judge Shahdadpur is directed to proceed with the case afresh from the stage where it was left by the Civil Judge and F.C.M. Shahdadpur and the proceedings held by Assistant Sessions Judge, Shahdadpur prior to this date are also quashed.

M.Y.H./M‑186/K Order accordingly.

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