1. In this application under section 526 of the Code of Cri--minal Procedure, preferred by one Nasir- ud-Din, in a case under sections 307, 325, 326 read with section 149 and section 148 of the Pakistan Penal Code, pending against respondents Nos. 2 to 6, in the Court of Chaudhry Nazeer Ahmad, Section 30 Magistrate, Lahore, it has been contended inter alia that after having stayed the proceedings on an application made by the complainant, the learned trial Magistrate could not grant bail to respondent No. 3, Khawaja Anwar Ahmad. In the comments sent by him, the learned trial Magistrate has tried to explain as to under what circumstances, he granted bail to the aforesaid respondent. His version is as follows:- "The factual position is that on 5-9-1969, I called the case for recording the evidence. However, no witness had turned up apart from the complainant himself and the moment I started recording his name and other particulars, he gave the notice of his intention to move the transfer application.
2. The proceedings were consequently stayed. It is totally incorrect that before the notice -of the transfer application I asked my reader to put up the bail application. It is also incorrect that I passed the bail order and then started the proceedings. This fact is apparent from my order on the bail application, wherein I have observed that the proceedings in the case had been stayed.
3. However, the fact remains that I bailed out the accused after the proceedings had been stayed."
2. Copy of the bail order has been shown to me, where--in the learned trial Magistrate has tried to justify his order of granting bail. He observed that while rejecting the bail application of the aforementioned accused, the learned Sessions Judge had ordered that he could make a fresh application for bail after some ocular evidence had been recorded. He further observed as under :- "Today none of the witnesses except Nasir-ud-Din com--plainant himself turned up. He appeared in the witness-box and when I was about to start recording the evidence, he gave me the notice for his intention to move the transfer application in this case in the High Court. Therefore, I had to stay the proceedings. The learned defence counsel has contended in para. 4 of his bail application which was filed as back as 25th July 1969; he expressed the fear that the complainant will avoid the production of the evidence in order that the petitioner may riot be allowed bail. More--over, the bail was rejected by the High Court on 21-7-1969. The accused was arrested on 26-6-1969. The effect of the transfer application by, the complainant will be that if the accused is not released or bail, ho will unnecessarily have to remain in, jail for a pretty long the for no fault on his part."
4. The reasons set forth by the trial Magistrate in granting bail to the aforementioned respondent may be justifiable, but the question is, whether after having stayed the proceedings, at the request of the complainant, he had not become functus officio or could he thereafter, irrespective of any order made by any superior Court, grant bail to respondent No. 3, 1 am of the view, that he could not. In this view, I am supported by an authority reported as Takla Ram v. Emperor ((1931) 32 Cr. L J 569). In this case, where an accused person applied to ---the High Court for transfer without informing the trying Magistrate and the latter, when he came to know of the fact, stayed, further proceedings but cancelled his bail bond; held that the Magistrate having stayed his bands, ought not to be have taken the drastic step of cancelling the bail bond; his doing so was likely to cause a reasonable apprehension in the mind of the accused that he would not have a fair and impartial trial in his Court. This was considered by Mr. Justice Agha Harder a sufficient ground- for' transferring the case from his file and, it was so transferred. The facts of the aforementioned case are identical to the facts of this petition. It is apparent from the narration of the facts, mentioned above, that the learned trial Magistrate after having stayed the proceedings, granted bail to the respondent which he could not. This has created a reasonably apprehension in the mind of the petitioner that he could no get a fair and impartial trial at his hands. I, therefore, alloy the application and direct that the case shall be sent by the trial Magistrate to the District Magistrate, Lahore to be transferred by the latter to any other Magistrate of competent jurisdiction.