This is a petition under section 526 of the Criminal Procedure Code for the transfer of a criminal case pending against the petitioner and four others under sections 148 and 452/149 of the Pakistan Penal Code in the Court of Khan Ijaz Ahmad Khan Magistrate 1st Class, Lyallpur on the ground that the Magistrate bad summoned Doctor Muhammad Rafiq Anjum as a witness after the close of the prosecution case and entertained another application in this respect in their absence and passed some orders thereon without any notice to them. Comments of the Magistrate were accordingly sent for and the record is also before me which has been perused with the assistance of counsel for the parties.
2. The daily order sheet reveals that the prosecution evidence was closed by the Magistrate on 5- 7-71 and the case was adjourned to 15-7-71 for further proceedings in the matter when the Magistrate had proceeded on 10 day's leave and the case was posted to 30-7-71. On this date, charge-sheet was drawn out against the petitioner and his co-accused which was duly read over to them and their pleas were also recorded thereon and the case was then adjourned to 17-8-71 for producing their defence evidence. On this date, the private complainant submitted an application with the prayer that Doctor Muhammad Rafiq Anjum who had examined the injuries of Muhammad Iqbal Niazi and Abdul Manaf P. Ws. with first aid to them, be summoned as a witness in the case.
Learned Magistrate had issued a notice to the other party (the petitioner and his co-accused) in this respect for 19-8-71 when they filed their written statement urging that the name of this witness was not mentioned in the calender and that it was too late to examine him in this case especially when the prosecution evidence had been closed. The Magistrate, however, considered his evidence essential in the interest of justice and passed an order to summon him. It appears that after this order was passed another application was submitted by the complainant on the same date with the request that this doctor should be summoned as a "Court witness" but without any notice to the other party, this request, was accepted and it appears from his report that Doctor Muhammad Rafiq Anjum was summoned as a "Court witnesss".
3. Learned counsel for the petitioner does not challenge the legality or propriety of this order but his grievance is that the character of the witness has been changed by this order placing the complainant in an advantageous position as they would have a right to cross-examine their own witness. I have examined the daily order sheet of the case and find from the order dated 17-8-71 that the Magistrate was initially under the impression that Doctor Muhammad Rafiq Anjum was being resummoned or recalled for his evidence as one of the prosecution witnesses. The order passed on the next date also did not mention that Doctor Muhammad Rafiq Anjum was being summoned as a "Court witness". In fact, there are two orders in this respect, one recorded by the Magistrate in his own hand on the written statement filed by the petitioner, and the other in the handwriting of his Reader in the order sheet, and both these orders were silent as to the capacity in which this witness was being summoned. The order passed by the Magistrate on 21-8-71 on the second application submitted in this behalf by the private complainant on the same date, however, found no place in the order sheet, and there is no indication either that any notice was issued to the other party in this respect before passing this order. He had thereby changed the character of the witness, by his subsequent order dated 21-8-71, which was passed at the back of the petitioner. In this background, I agree with the learned counsel for the petitioner that there were reasonable grounds for the petitioner to apprehend that he would not get a fair trial in this Court. I have, therefore, to accept this petition, and direct the District Magistrate, Lyallpur, to withdraw this case from the file of Khan Ijaz Ahmad Khan Magistrate 1st Class, Lyallpur, and make it over to some other Magistrate of competent jurisdiction for its disposal in accordance with law. .