Muhammad Anwar (20) was murdered on the 19 June 1970. At 5-00 p.m. In the Main Bazar of Campbellpur. Mahbub Elahi Bakhshish Elahi and Inayat Elahi have been accused of the murder.
Ordinarily, this case should have been put in the Court of Mr. Muzaffar Hussain Kazmi: Ilaqa Magistrate, for commitment proceedings. Before submitting the case in that Court, the Police submitted the case to the A. D. C. (G), pointing out that Mr. Muzaffar Hussain Kazmi had recorded the statements of to witnesses under section 164, Cr. P: C., and requested that therefore, this case be entrusted to Mr. Muzaffar Hussain Zaidi, Magistrate Ist Class, for commitment proceedings;...
4,n_ the 10th July 1970, the A. D. C. (G) entrusted the case to Mr. Muzaffar Hussain Zaidi, Said Akbar, father; : of. Muhammad Anwar deceased, filed the present` Revision Petition No. 780 of 1970.
(i) to have the order dated the 10th July 1970 set aside;
(ii) for a direction that it., may be put in the Court of the Ilaqa Magistrate, namely, Mr. Muzaffar Hussain Kazmi; and (i.e) in the alternative, the case be transferred to some Court outside the District.
2: The order dated the 10th. July 1970 is assailed on the following grounds:
(a) The A. D. C. (G) had no jurisdiction to transfer the case from the Court of the Ilaqa Magistrate to the Court of Mr. Muzaffar Hussain Zaidi.
(b) This case was not pending in the' Court of the Ilaqa Magistrate and, -therefore, the A. D. C. (G) was not competent to transfer it in pursuance of the provisions o--- section 528 (2) of the Criminal Procedure. Code.
(c) The mere fact, that Mr: Muzaffar Hussain, Kazmi had recorded the statements of to recovery witnesses under sec--tion 164; Cr. P. C. Did not make him. a witness in the case, nor did it debar himth from taking cognizance of the case for purposes of commitment. There was -no such bat under section 556, Cr. P. C. On the other hand, section '487 (2) of the Code supported the view that he was competent to commit the case.
(d) The impugned order had been passed without notice to the petitioner:
(e) Since Mr. Muzaffar Hussain Kazmi had the reputation of being an independent. Magistrate, the police, for ulterior motives, wanted the inquiry, to be made by some other Magistrate.
3. In paragraph 2 (vi) (h) certain 'allegations were made or the basis of which it was urged that the petitioner had genuine apprehensions, that he would not get fair and impartial inquiry from Mr. Muzaffar Hussain Zaidi. It was stated at the Bar that Mr. Muzaffar Hussain Zaidi has since been transferred. Then allegations therefore, do not require examination.
4. Malik Sher Bahadur, learned counsel for the accuses' contended it that since the petitioner insisted on an inquiry by Muzaffar Hussain Kazmi, in particular, to the exclusion other Magistrates, the respondents had apprehensions that the would not get a fair deal from him.
5: Learned counsel for the petitioner referred to the following cases:-
(1) Bhola Ram and others v. Emperor 135 I C 675.
(2) Azad J & K Government v. Attaullah Khan PLD 19 Azad J & K 28.
It was pointed out in Bhola Ram's case that the position of a committing Magistrate was wholly different from that of a Magistrate trying a case and the committing Magistrate cannot be said to have any personal interest whatever. In Azad J & K Government v. Attaullah Khan it was held as follows:-- "In my opinion, there is nothing in section 556 of the Criminal P. C. Which debars a trying Magistrate from taking committal proceedings in a case in connection with which he 'has acted in his Magisterial capacity, to Wit, he has either recorded the statement of the accused or conducted an identification parade, or recorded a dying declaration, or done some other such thing. In discharging his duty as a Magistrate, one cannot be said to have any personal interest whatever in a particular case. The position of a committing Magistrate as frequently explained is wholly different from that of a Magistrate trying a case. The committing Magistrate cannot be said by any stretch of reason to have any personal interest in the case committed by him for trial to the Sessions Judge. AIR 1932 Lah. 196 and AIR 1945 Desh. 32 are authorities supporting my view."
The Magistrate who merely records the statement of a recovery witness under section 164, Cr. P. C.
Has no such personal interest as might debar him from holding an inquiry. Even if the witness resiles from any part of the statement, it shall not be necessary to examine the Magistrate as a witness. Accordingly, it is held that Mr. Muzaffar Hussain Kazmi was not in any manner debarred from making an inquiry in this murder case. .
6. The case had not been submitted to the Court of Mr. Muzaffar Hussain Kazmi for purposes of inquiry. It could not, therefore, be said that it was .a case "pending" in the said Court, which could be transferred from that Court to any other Court. Section 528 (2), Cr. P. C. Runs as follows;- "Any District Magistrate or Sub-Divisional Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same."
Since this case had not been made over, by the A. D. C. (G), no was it pending in the Court of Mr. Muzaffar Hussain Kazmi, the A. D. C. (G) was not competent to recall that case at that stag and refer it for inquiry to any other Magistrate.
Further the A. D. C. (G), in pursuance of subsection (5) of section 528, Cr. P. C. Was required to record in writing his reasons for making the order of transfer. The reason recorded is that Mr. Muzaffar Hussain Kazmi will be a witness in the case. As noticed above, Mr. Muzaffar Hussain Kazmi was not likely to be a witness. Besides, even if he Were a witness, this would not operate as a bar to his taking cognizance of the case.
7: Learned counsel for the petitioner referred to subsection (2) of section 487 of the Criminal Procedure Code (hereinafter referred to as the Code) and urged that nothing in section 476 of the Code shall prevent a Magistrate empowered to commit to the Court of Session or High Court from himself committing any case to such Court. A fortiori, a Magistrate, who merely recorded a statement of a recovery witness continued to be competent to commit the case which he was otherwise empowered to do so. Section 476 of the Code refers to offences mentioned in section 195 of the Code where any such offence e. g. Described in section 463 or punishable under section 471, section 475 or section 476 of the Pakistan Penal Code is alleged to have been committed by a party to any proceedings, in any Court; in respect of a document produced or given in evidence in any proceedings. It follows that the mere fact that Mr. Muzaffar Hussain Kazmi recorded the statements of to witnesses under section 164, Cr: P. C. Will not operate as a bar to his making an inquiry in the ease.
8. Learned counsel for the petitioner urged that the impugned order was made without notice to the, petitioner --complainant and, therefore, was liable to be set aside. Malik Sher Bahadur, learned counsel for the accused-respondent referred to the case reported as Zulfiqar v. Zulfiqar (1970 P Cr. L J 1042). In that case it was held as follows:- "In my opinion, in murder cases, the opposite-party is only the State. The relatives of the deceased person or the p6rsons who loge the First Information Report are neither proper nor necessary parties to the case pending before the Sessions Court. In view of this, the petitioner was not entitled to any notice in the transfer Application."
It follows that the contention made by the learned counsel for the petitioner is untenable.
9. Learned counsel for the accused-respondent offered that the inquiry may --be made by the successor of Mr. Muzaffar Hussain Zaidi. Mr. Muhammad Nawaz, learned counsel for the petitioner, insisted that the inquiry should be made by none other than Mr. Muzaffar Hussain Kazmi. In view of this insistence, there is substance in the apprehensions alluded to by the learned counsel for the accused-respondent.
10. In view of what has been stated above, the order dated the 10th July 1970 is hereby set aside.
The District Magistrate, Campbellpur, is directed to entrust this case to a Magistrate of a competent jurisdiction other than-
(d) Mr. Muzaffar Hussain Kazmi;
(ii) the successor of Mr. Muzaffar Hussain Zaidi.
If it is not possible to entrust this case to any other Magistrate in the District, the learned District Magistrate shall make the inquiry himself. The prayer for transfer- of the case out of the District, is rejected.