This application under section 526 of the Criminal Procedure Code arises in the following circumstances
1. The applicant is the kamdar of Air-Marshal M. Asghar Khan who is stated to own about 240 acres of land near Rohri which have been cultivated as an agricultural farm and has also a residential bungalow on it. On the 18th of July, it is alleged that some persons came and took forcible possession of the land when the applicant was absent. The applicant was informed and hurried to the house where he himself was assaulted. He then went to the Superintendent of Police who sent for the S. H. O. Of the Police Station within the limits of which the incident had taken place and an F.
I. R. Was recorded but according to the applicant no further action was taken on this. An application under section 145, Cr. P. C. Was thereafter, made on the 28th of July, 1972 to the Civil Judge and Ist Class Magistrate, Rohri who entertained the application, issued notice to the parties and fixed the 9th of August for hearing. On the 9th August, however, it was learnt that a reference has been made to the District Magistrate for transfer of the case who in fact, later, did transfer it to the Sub-Divisional Magistrate. The case was then fixed for the 7th of September on which date the Advocate for the applicant asked for an attachment. Notice on this application was given for the 14th of September, and it is as a result of the case not proceeding on the 14th that apprehen--sions have been expressed as to the conduct of the learned Magistrate.
2. Apart from the progress of the case on the 14th to which I shall presently revert the petition itself made large and general allegations claiming that the President of Pakistan was personally hostile to Air-Marshal M. Asghar Khan and that, therefore, the S. D. M, was also hostile to the applicant. This allegation is made in the course of several para--graphs and one among them is that the Air- Marshal had alleged that there was a plot to assassinate him and that the president, therefore, asked me to appoint a Judge of the High Court to conduct a judicial enquiry. It was alleged that the purpose of this enquiry was mala fide and was really intended to force the Air-Marshal to disclose the evidence. I do not propose to go further into this allegation because, as an allegation, it is supported by nothing but the word of the applicant or indirectly the word of the Air-Marshal as to the motives of the President. Obviously I can place no reliance upon this or on the very many other facts which have been pleaded generally as to the political atmosphere and which are not such that I can take judicial notice of them.
3. Regard being had, however, to the fact that I myself recommended a Judge of the High Court, I asked Mr. Jatoi, when this matter came up for kucha peshi whether I should hear the case. Mr. Jatoi categorically stated that he had not the least objection to my hearing the case. I refrain from making further comments on this allegation not only because I do not see any material in this case which would induce belief therein but also because the Air-Marshal has challenged the validity of that enquiry and proceedings in respect of that challenge are pending in this Court.
4. At the time of kutcha peshi I was un-impressed by all the allegations save one which was that despite the fact that a Civil Judge having jurisdic--petition had entertained this case the District Magistrate transferred it to the Court of the sub-Divisional Magistrate. I, therefore, asked for a report particularly on this point. It now transpires that this is not the correct position. The learned Civil Judge and Ist Class Magistrate had been empowered to have cognizance of all cases coming from the police station concerned except cases commonly referred to as `Chapter Proceedings' which include proceedings under section 145, Cr. P. C. The learned Magistrate wrongly thought that there was no such reservation and he had, therefore, mistakenly, though honestly, entertained this case. When the District Magistrate, therefore, directed that the Sub-Divisional Magistrate should hear this case he was not really transferring this case but merely restoring the case to the Magistrate having jurisdiction.
5. It was argued before me, however, today that the conduct of the Magistrate on the 14th of September 1972 was such that the party has lost confidence in him. This conduct is alleged to lie in this that on that date although two witnesses of the applicant were present the learned Magistrate did not examine them. The case diary, however, shows a somewhat different picture and that is that since the case could not proceed on that date for lack of service on the other side counsel himself said that he would examine them on the next date of hearing. An extract from the order sheet is reproduced in the application itself and the correctness of this passage is not challenged although the paragraph does say that the applicant's Advocate did request that they be examined. In view of the order, however, I cannot read that as meaning more than a usual request which an Advocate would make. I do not read that as a refusal on the part of the Magistrate to take the evidence; on the contrary what seems to happen is that it being pointed out to the Advocate that the case could not proceed in its entirety he acquiesced in the postponement of the examination of his witnesses also. I was not at any time disposed on this account to order a transfer but for the fact that in his explanation the learned District Magistrate states:--- "No witness was even present before me as is alleged."
Now this would mean at first sight that no witness was physically present because in the earlier sentence the Magistrate had already denied that any evidence was led. If therefore, the Magistrate meant only that evidence was not examined normally there would have been no need to record the sentence which I have quoted. However, I am unable to attribute to the learned Magistrate the dishonest intention of wishing to mislead me on this point inasmuch as he goes on immediately to refer to a written note made by the Advocate for the applicant which reads thus:--- "This statement of the complainant, who is present in Court now, is submitted before this Hon'ble Court in support of his application for immediate attachment."
6. The case then having been adjourned to the 28th the applicant did not take any steps to move this Court until the 27th and on the 28th asked for an adjournment from the Magistrate on the ground that he was moving the High Court. It does not seem to me, therefore, that on the 14th or soon-thereafter the applicant really had this apprehension.
7. It would be profitless in these circumstances to speculate as to why the application was brought at all. As I have said, a very large part of the application alleges political enmity and that too on the basis of facts on which no evidence has been led and which are not such that I could reasonably take judicial notice of. In these circumstances this application is, dismissed.