This is a Transfer Application under section 526, Cr. P. C. moved by Mushtaq Akhgar petitioner, against Daraya Minwala and the State requesting that the criminal case instituted on the direct complaint of the respondent Daraya Minwala under section 500, P. P. C. now pending against the petitioner and four other co-accused in the Court of the learned City & A. D. M., Karachi be transferred from his Court to any other Court competent to deal with it or it may be transferred to this High Court for the purpose of trial on the original side.
2. The only allegation on which the transfer was being sought on behalf of the petitioner was grounded on the following grounds:--
3. The criminal case referred to above was fixed for hearing on 3-6-1971 when the complainant was examined-in-chief by the prosecution. Besides the present petitioner as already mentioned there were four other co-accused also with him facing the trial. On that day, the learned counsel for the present petitioner namely, Mr. S. Raza Abbas Naqvi was already engaged by the co-accused in the case, namely, Badre Munir but he was also briefed on behalf of the present petitioner on that very day perhaps in the court-room and, therefore, according to him he had not obtained any instructions from him. After the examination-in-chief of the complainant was over the present petitioner's counsel Mr. S. Raza Abbas Naqvi cross-examined the complainant on behalf of his client the co-accused Badre Munir which he finished. According to him, he then requested the learned trial Magistrate to allow him to cross-examine further the complainant on behalf of the other accused in the case i.e. the present petitioner Mushtaq Akhgar on whose behalf he requested the Magistrate he had been engaged on that very day but the learned Magistrate declined to allow him to cross-examine the complainant further as prayed for by the petitioner's counsel. Remarks of the learned trial Magistrate have been called for by this Court and in his remarks the learned Magistrate admits this position. This is what he says in his own words :-- "At that stage Mr. Raza Abbas Naqvi started writing Vakalatnama on behalf of accused Mushtaq Akhgar and wanted to cross- examine the complainant afresh, on behalf of accused Mushtaq Akhgar to which I did not agree as the defence Advocate could not cross-examine a witness more than once whether he appears for one accused or several accused. Accused Mushtaq Akhgar, however, did not cross-examine the complainant. Thereafter before the cross-examination of accused Jamshed Ansari could commence an application was made for the stay of the proceedings under section 526(a), Cr. P. C. as the accused Mushtaq Akhgar wanted to file a transfer application in the High Court."
4. It will be seen, therefore, that it is an admitted position that the trying Magistrate had not allowed counsel for the present petitioner, who was accused in the case, to cross-examine on his behalf also during the examination of the complainant at the trial. The present petitioner's counsel obviously was engaged on that very day and could not have obtained instructions from the petitioner so as to be able to cross-examine on his behalf. In my opinion the learned trial Magistrate ought to have allowed the present petitioner's counsel to cross-examine the complainant in the case further on his behalf and he should have afforded him that opportunity of further cross-examination. On my suggestion the learned counsel for the petitioner feels satisfied that if it is ordered that he may be given an opportunity for further cross- examination on behalf of the present petitioner whose defence case he had not developed in the cross-examination by him on behalf of the co-accused Badre Munir he would be satisfied with the order and would not press the transfer application. The learned counsel for the opponent No. 1, i.e. the complainant, in the case Mr. Rustom J. E. Kaikobad and the learned counsel appearing on behalf of the State Mr. A. A.
Mohammedally also agree to this proposition.
5. Accordingly, I see therefore, no need to order the transfer of the case to any other Court but I would direct the trial Magistrate that he should allow counsel for the present petitioner Mushtaq Akhgar, who is accused in the case before him, to further cross-examine the complainant on his behalf and thereby give him an opportunity to develope the defence case of the petitioner- accused in that case before him. This is, however, proper to do as the law is well settled that a Court of law should not do any act in a way which would embarrass the accused person in his defence vide the case of Noor Ahmed v. The State (1).
6. For the foregoing reasons, therefore, this transfer application is dismissed with the above direction which will be followed by the trial Magistrate and the petitioner's counsel shall be allowed an opportunity to cross-examine the complainant in the case before him further on behalf of the present petitioner who is accused before him. . [6]