1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of an order of a learned Single Judge of the former High Court of West Pakistan, Lahore Seat, dismissing a petition under Article'
2. 123 of the Constitution of 1962 in limine by a short order to the following effect :- "From the statement of facts, narrated in the petition, I do not feel inclined' to vindicate the personal grievance of the petitioner. The petition is dismissed.
2. The petitioner has made a prayer that a certificate should be given under Art. 58 of the Constitution. I do not find the necessity of certifying that an appeal to the Supreme Court should be made. The Certificate under section 58 of the Constitution is refused."
3. Leave was granted in this case to consider whether, "in view of the assertions made by the petitioner in his petition under Article 123 of the Constitution", the learned Judge was justified in dismissing the petition in limine.
4. The circumstances in which this application under Article 123 of the Constitution of 1962 came to be filed may briefly be stated as follows : It appears that on the complaint of the Secretary, Municipal Committee, Hafizabad, filed in the Court of the Sub-Divisional Magistrate, Hafizabad, on the 9th of February 1968, alleging avoidance of payment of octroi duty, the appellant was summoned to appear on the 23rd of February 1968, under section 116 of the Municipal Administration Ordinance, 1960. He appeared on this date, pleaded not guilty and wanted time to contest the case. The case was, accordingly, adjourned to the 1st of March 1968. On this date, which was a Friday, the appellant alleges, he got a transfer application and a personal bond prepared by one Syed Murad A.I, a local Araiz Nawis, and got the bond attested by two persons named Muhammad Hanif and Ghulam Rasul. Thereafter the appellant appeared before the Sub-Divisional Magistrate, Hafizabad (respondent No. 2 herein) along with Muhammad Hanif and Ghulam Rasul, and handed over the petition to the Magistrate. The Magistrate after reading it flared up abused the appellant refused to adjourn the case and promptly, without taking any evidence or examining the accused, convicted him and imposed a fine or Rs. 100 or in default imprisonment for one month. The allegation of the appellant is that the Sub-Divisional Magistrate also forthwith ordered the Police to take him into custody if the fine was not paid. The appellant, therefore, brought the money from his shop and paid the fine under protest. This protest is not, however, recorded anywhere in writing.
5. After this, on the 7th of March 1968, an application under section 526 of the Criminal Procedure Code was moved before the High Court setting out the above facts and alleging that in the circumstances the proceedings for the prosecution of the appellant under section 116 of the Municipal Administration Ordinance, 1960 were still pending before the respondent No. 2, as the Magistrate was bound, under subsection (8) of section 526, Cr. P. C., to adjourn the case for a reasonable time. By failing to do so, he had acted illegally and contrary to the mandatory provisions of law and, as such, the proceedings taken in violation thereof were wholly null and void.
6. The appellant also com--plained that he was being denied copies of the orders of the Magistrate.
7. On this application the High Court on the 14th of March 1968, called for para-wise comments from the Magistrate. In his comments the Magistrate denied the allegations of the appel--lant as also denied that any application for the transfer of the case had been filed before him. He stated that, if such an application had been filed, he would have adjourned the matter. According to him, as the appellant did not produce any evidence, he was convicted and sentenced and he paid the fine without any demur or protest.
8. During the pendency of this application, the appellant filed another application under Article 123 of the Constitution of 1962 on the 16th of March 1968, repeating the same facts. This application was accompanied by the affidavit of the appellant and an extract from the register of the Araiz Nawis showing that the petition for transfer had been drafted by the latter on behalf of the appellant.
9. The petition under section 526 of the Criminal Procedure Code was, however, supported by the affidavits of Muhammad Hanif and Ghulam Rasul, who had accompanied the appellant to the Court of the Magistrate. They substantially corroborated the version of the appellant.
10. The High Court dismissed the petition under Article 123 of the constitution on the 4th of April 1968, mainly on the ground that the grievances contained therein appeared to be personal grievances of the appellant.
11. The application under section 526 of the Criminal Procedure Code was dismissed on the 27th of June 1968, on the ground that the case having already concluded, the transfer application had become infructuous.
12. The appellants it has to be pointed out has not moved against the said order of the High Court dismissing the application under section 526 of the Criminal Procedure Code nor filed any appeal or revision against his conviction by the Magistrate concerned.
13. The question before us, however, is whether the learned Judge was justified in dismissing the petition under Article 123 on the ground that it was a purely personal. Grievance of the petitioner: The reason given by the learned Judge is clearly due to a misreading of the appellant's petition.
14. The appellant was really complaining of an abuse of power on the part of the Magistrate concerned, and it behaved the High Court, having regard to the seriousness of the allegations contained in the petition, which was duly supported by an affidavit and some prima facie evidence, to have investigated into the same.
15. The reason for making the application for transfer was also quite genuine. On the admission of the respondent No. 2 himself, in his report submitted in the proceedings under section 526 of the Criminal Procedure Code, it is clear that as Sub-Divisional Officer, the Magistrate was also the ex officio Chairman of Hafizabad Municipal Committee. Thus under section 118 of the Municipal Administration Ordinance he became in law, the complainant in the case, for no Court could take cognizance of any offence under the said Ordinance except on a complaint in writing received from the Chairman or a person generally or specially authorised by the Municipal Committee in this behalf. The question, therefore, had to be investigated as to whether the Secretary, who had lodged the complaint was duly authorised to lodge such a complaint ? If not, could the Chairman, as the complainant himself, try the case in another capacity ?
16. The question as to whether an application for transfer was actually presented before the Court or not had also to be investigated after giving the parties an opportunity to produce evidence in support thereof. The appellant had actually filed two supporting affidavits in the proceedings under section 526, Cr. P. C. He may well have filed similar affidavits in the application under Article 123 as well.
17. If such a transfer application was in fact filed, then the next question that had to be investigated was as to whether the Magistrate was bound under subsection (8) of section 526 of the Criminal Procedure Code to adjourn the case for a reason--able period. If he did not do so then what is the effect thereof ?
18. Again, having examined the records of this case, we find that the allegations of the appellant cannot be lightly brushed aside, for the Order Sheet of the Magistrate shows that he neither examined the complainant nor any witness was called to prove the prosecution case nor was the accused examined before conviction. The would seem to sport the allegation that the Magistrate acted in a huff and proceeded to convict in total disregard of the provisions of law, for even in summary proceedings, the sub--stance of the evidence has to be recorded in the Register and the accused has to be examined. A conviction recorded without following this procedure is not in accordance with law. The petition of the appellant patently contained allegations of serious disregard of legalprovisions by the Magistrate concerned. The learned Judge of the High Court, it appears to us, had not applied his mind either to the facts of the case or to the relevant provisions of the law governing the same. This was not an application which could have been dismissed in limine. We are, therefore, constrained to allow this appeal, set aside the order of the High Court and remand the case back to the High Court for disposal in accordance with law.
19. The record of the proceedings under section 526 of the Criminal Procedure Code, which have been produced before this Court, should also be sent down to the High Court along with the records of the application under Article 123 of the Constitution of 1962.