Briefly stated, the facts leading to this Transfer Application filed by the petitioner M. M. K. A. Zai, Advocate are as under:------ The petitioner and one Iqbal Ahmed Ansari, the then Upper Division Clerk working in the office of Deputy Settlement and Rehabilitation Commissioner, Karachi, were found guilty under section 5 (2) of the Prevention of Corruption Act, 1947 read with section 120-B, P. P. C. By Captain Syed Iftikhar Hussain, Special Judge (Central), Karachi and were sentenced to undergo R. I. For two years on each count. The appeals filed by them in this Court being Appeals Nos. 412 of 1967 and 5 of 1968, were dismissed on 28th June 1967 it is however stated at the Bar that the appeals of the convicts are now before the Supreme Court of Pakistan. The prosecution allegations against the petitioner was that he in collusion with the co-accused fraudulently and dishonestly obtained transfer of an evacuee property worth Rs. 3,90,240 by manipulat--ing departmental records by setting the Survey Number of the plot inserted in the transfer-documents of the other property purchased by him.
2. An offshoot of this case was a complaint filed by the petitioner on Ist of January 1972 against three known and some other unknown persons, under sections 380, 409, 465, 466 and 109, P. P. C.
The three accused named in the complaint are (1) Captain. Syed Iftikhar Hussain, the then Special Judge (Central), Karachi, (2) Muhammad Usman Khan, the then Inspector of Special Police, and (3)
Abdul Hafeez the then Deputy Superintendent of Special Police.
3. The complaint was filed before the District Magistrate. Karachi, who forwarded it to the City and A. D. M., Karachi with the endorsement "hearing and for disposal according to law by the City and A.
D. M. Himself".
4. The day he received the complaint, the City and A. D. M., Karachi, recorded the statement of the petitioner, and then asked him to show how the complaint was competent in view of the bar of sections 195 and 197 of the Code of Criminal Procedure-- He fixed the case for hearing of arguments in this connection for 15th January 1972. In the meantime, the petitioner approached this Court for the transfer of the case on the grounds that may be stated in his own words, in grounds 2 to 6 of this application.
"2. Because the D. M. And the A. D. M. Are on friendly relations with the respondent No.1 and for that the D. M. Has not taken cognizance himself in the beginning but sent the com--plaint to A. D. M so it is but impossible that a fair and impartial trial can be had there. Other Magistrates, in Karachi, are under control of these two Magistrate also justice cannot be had from them too.
3. The high post the respondents hold or have held, has created apprehension in the mind of the petitioner that the Magistrates will be won over by these respondents by corrupt means or otherwise and justice will not be done to the care of the petitioners.
4. Because A. D. M./D. M. Are not superior to the respon--dent No. 1 in rank, so the petitioner has apprehension in his mind that inferiority complex will play much upon the mind of the trying Magistrates and fair and impartial trial will not be done.
5. The high position in judiciary of the respondent No. 1, requires that his trial be had at High Court level so that stream of law may flow swiftly, unmuddled and clean like crystal.
6. The P. Ws. Are generally high personalities and among the members of Bench, Bar and staff of High Court, and it will be easy for both the parties if this case is transferred to High Court "
The remarks of the learned City and A. D. M., Karachi, called for by this Court are to the following effect:-- "'The complainant M. M. K. A. Zai, Advocate-had presented his complaint before me in my chamber which was endorsed by the District Magistrate, Karachi to this Court for disposal according to law.
The statement of the complainant was, recorded under section 200, Cr. P. C. On 12th January 1972. I had informally told the complainant that Captain Syed Iftikhar Hussain was known to me since he was an A. C. M. In Karachi and I was a practising lawyer. It is totally incorrect that I had told him that he was my friend and I could not proceed with a ease against him or that it would be embarrassing to me to proceed with the case. I bad directed him to address the Court whether in view of the previsions of sections 197 and 195 of the Cr. P. C, the complaint was maintainable. On 15th January 1912 when had to address the Court on the maintainability of the complaint he informed ms that he had moved a transfer application in the High Court. I therefore stayed the further proceedings."
Although Captain Syed Iftikhar Hussain has since retired from Government service, it was vehemently argued that he has held important position in Karachi, as the special Judge (Central) and so have the two other respondents, and in the circumstance the trial of the case at the hands of any Magistrate at Karachi cannot be expected to be fair and impartial, and therefore the case be transferred to this Court. Apart from this plea being wholly unjustified, I am afraid I cannot order transfer of the proceedings of the case to this Court as one of the offer indicated in the complaint is section 466, P. P. C., which is exclu--sively triable by the Court of Session. Not only that no order has teen yet passed on the complaint under section 200, Cr. P. C. But thereafter the committal enquiry has to be held and it is after the case is committed for trial to the Sessions Court, that this Court would have the power under section 526, Cr. P. C. To order trial before itself, The petitioner however relied upon the case of Maulana Ubaid Ullah Anwar v. The District Magistrate, Lahore (1969 P Cr. L J 593), in which Shaukat Ali Shaikh, J. Ordered transfer of a Sessions-triable case to the High Court and directed the Sessions Judge to record statement of the complainant and hold enquiry under section 200, Code of Criminal Procedure. With greatness respects, I do not see how such a direction would be valid in law in the face of the clear bar in section 193 that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction. Section 200 is a part of Chapter XVI of the Code of Criminal Procedure, which in its very heading crakes it clear that the entire Chapter relates to complaints before Magistrates, and not to a Court of Session. Moreover, their Lordships of the Supreme Court in the case of Shamsuddin v. Captain Gohar Ayub and another (PLD 1965 SC 496) made it clear that the High Court under the provisions of section 526 of the Code of Criminal Procedure cannot transfer a case exclusively triable by the Court of Session to itself, as it is necessary that the case be firstly committed to the Court of Session after an enquiry under Chapter XVIII of the Code.
5. Before parting with the case, I wish to place on record that the petitioner pointed out, at the outset that I have been named by him as a witness in the complaint and I may consider if some other Judge may deal with this Transfer Application. I was extremely surprised to have noticed this fact as I know nothing of this case, and conceived of no reason why I should have been cited as a witness. On query in this behalf the petitioner explained, and I may quote his own words:--- ---In the beginning of 1965 in your capacity as Additional Advocate-General, West Pakistan, Karachi your Lordship had the occasion to see the charge-sheet of the case against me."
I must point out that I have not the faintest recollection, whatso--ever, in this regard. I further find the list of witnesses given by the petitioner in his complaint is as follows :---- "Registrar, Superintendents, Copysts and other officials of High Court. Karachi, Supreme Court of Pakistan, Court of Special Judge (C), Karachi, Yousuf Ali, Mushtaq Ahmed Qureshi, Jamal Ahmed Qidwai, Mr. Justice Abdul Qadir Shaikh Judge, Advocate-General and his staff, Major Haqqani, Mr. Justice Raymond Ex-Judge, Barkat, Aitqad, Mr. Hasan Ali Abdul Rehman, Vice-Chancellor, Mr. Ahsanul Haq Qureshi concerned officials from Settlement Department, and S. P. E., S. H. O. Risala Police Station. Iqbal Ahmed Ansari, Mr. Khalid M. Ishaque, Mr. Kaleem, Adam Suleman, Abdul Ghaffar, Asghar Wasti, Mr. Ali, Mr. Farqani, Mr. Dar, Mr. W. H. Haqqi, Incharge Records, Settlement Department, Karachi and others."
I am not concerned with the others, but I cannot help observing that the least courtesy that the petitioner ought to have extended to a Judge of a superior Court before citing him as a witness, was to consult him beforehand if he has anything to say in a Court of law with regard to his complaint. In the circumstances, I did not feel myself disqualified from hearing this case.
6. For the reasons given above, I find no substance in this transfer Application. 1t is accordingly dismissed.