1. S. A. RAHMAN, J.-This is an appeal by special leave from an order passed by a Single Judge of the High Court of West Pakistan, by which he rejected the application of the appellant for transfer of certain cases, in which he figures as an accused along with other persons, from the Court of Mr. M.
2. N. Rizvi, Special Magistrate, Lahore. The transfer petition was moved in the High Court in the following circumstances.
3. There are some 17 cases pending in the Court of the learned Magistrate in which the appellant, who is a partner in Farid sons, or some of his employees, are arraigned as accused. The charges preferred against them fall under sections 420 and 467, Pakistan Penal Code. In the course of one of those cases, one, Ghulam Ahmad, was examined as a prosecution witness. He apparently runs a printing press at which, according to the prosecution, Faridsons got printed certain vouchers to support a false claim, in respect of repairs to factories allotted to them. The witness made a statement in favour of the defence, which was contradictory to the one he had made on the previous day in another connected case. Incensed by the conduct of the witness, the learned Magistrate at this stage made a remark "I should arrest him now". In the report, which he submitted to the High Court, he explained that he had in contemplation the provisions of section 476 of the Criminal Procedure Code and that he intended that the witness should be placed on security foe appearance before him in connection with an enquiry under that section. It was pointed out to him that this step could not be taken till the decision of the main case, and he then directed that the matter should be discussed at the next hearing when the witness should have a surety ready. The occasion, however, did not arise, as, in the meantime, the transfer application was preferred in the High Court and stay of proceedings was granted.
4. The learned Judge, who heard the petition in the High Court, has observed in the course of his order that the principle underlying such cases was "that if as a result of the conduct of the Magistrate there is a reasonable apprehension that the witness may be intimidated, the case should be transferred". He, however, found that in the present case such an apprehension would not appear to exist since, according to the learned Magistrate, the defence counsel proceeded to conclude the cross-examination of the witness, Ghulam Ahmad, after the incident took place and that apparently the remarks of the learned Magistrate had not bad any adverse effect on the defence position. He further observed that, from the material on the record, it appeared to him that the learned Magistrate had no intention of intimidating the witness, and that he acted under a bona fide though mistaken belief that the provisions of section 476 of the Code of Criminal Procedure required him to take security from the witness at that stage. He held therefore that no case had been made out for transfer of the cases to another Court.
5. The short question which falls for determination in this case, is whether .The attitude of the Special Magistrate, even though bona fide, was likely to create a reasonable apprehension in the mind of the appellant that the Magistrate had been looking at the case with a certain amount of bias and that the proceedings were not conducted by him with that degree of detachment which is necessary for the due dispensation of justice in a criminal matter.
6. We consider that there can be no two opinions on this question in the circumstances of the case.
7. The witness, Ghulam Ahmad, may have prevaricated while giving his statement. He might have made a statement at one stage, favouring the prosecution and at another assisting the defence.
8. He could have been dealt with, if so considered expedient, after the case has been disposed of, under section 476 of the Criminal Procedure Code. But to give a positive indication during the pendency of the case that the trial Magistrate considered him to be a liar, as he did, would naturally create feelings of alarm in the mind of the accused and this attitude would, in fact, have the tendency to deter other prosecution witnesses from making any admission favour of the defence. The assessm ent of the value of the witness's statement at that intermediate stage in the case, whereas, the same witness was to be examined for the prosecution in the cases, was highly improper and should have been regarded as a disqualification for the Magistrate to proceed with the case in question. With all respect for the opinion of the learned Judge who dealt with the case in the High Court, we are unable to agree with him that the conduct of the learned Magistrate was not such as to justify a reasonable apprehension in the mind of the appellant that he would not receive a fair trial. This was an eminently fit case in which the High Court should have exercised its undoubted jurisdiction to transfer the case from the learned Magistrate's Court to some other competent Court.
9. Normally, this Court would not have interfered with an order of an interlocutory nature passed under section 526 of Criminal Procedure Code by the High Court in a criminal case. The instant case, however, was of such a flagrant kind that we have been constrained to intervene. It is, we think, much better that the mistake that has been made, be corrected at this stage, than to allow this and the other connected cases to run their course and to leave to open to consideration how far the biased attitude of the learned Magistrate had affected the merits of his decision. Mr. Suhrawardy, on behalf of the appellant has assured us that there is no desire on the part of the accused to prolong the proceedings unnecessarily and that they do not intend !o ask for de novo trial if the case is sent to another Court. We allow the appeal and remit the case to the High Court, with the direction that they may now select a competent Magistrate to whom the cases in question should be transferred for trial.