This is an application under section 526 of the Code of Criminal Procedure by Muhammad Iqbal and Muhammad Nawaz residents of Madali, District Sargodha, for the transfer of a case entitled "State v. Muhammad lqbal and others" under section 304 read with section 34 of the Pakistan Penal Code, pending in the Court of Sub-Divisional Magistrate, Jauharabad, to some other Court of competent jurisdiction at Sargodha,
2. The aforesaid case was registered against the petitioners at the instance of one Naib Subedar Sultan Mahmood Khan and the former were sent up to the Court of Sub-Divisional Magistrate on 1st August 1968. They moved a transfer application (Crl. Misc. No. 6080 of 1968) with regard to the instant matter. It was, however, disposed of as withdrawn, by my learned brother Muhammad Afzal Zullah, J. On 12th February 1969.
3. In the present application, the contentions of the peti--tioners inter alia are, that Naib Subcdar Sultan Mahmood Khan, the complainant is closely related to Malik Haq Nawaz Tiwana, former Deputy Inspector General of Police, who was a fast friend of the learned trial Magistrate and who had been seen visiting the Magistrate on several occasions, both in his Court and at his residence at Jauharabad 9 that afore said Malik Haq Nawaz Tiwana and the petitioners belong to opposite camps. In village Madali and their relations are highly inimical. At the instance of Malik Haq Nawaz Tiwana, the Magistrate has conducted himself in a manner which has created grave apprehension in the minds of the petitioners, that they would not get fair and impartial trial at his hands.
4. Elaborating their grievances, the petitioners have alleged, that one of them namely, Muhammad Iqbal, who was not well, did not appear in Court on 18th March 1969. He produced a medical certificate and the case was adjourned to 1st April 1969. He could not appear because of his illness on the last, mentioned date as well and thus in spite of the fact, that the Magistrate has been informed, that he had gone to Mianwali in connection with his treatment, the case was adjourned to 14th April 1969, and his bail was cancelled, and non-bailable warrants were issued against him.
The further grievance against the learned Trial Magistrate is, that although the Medical Superintendent certified about the illness of Muhammad Iqbal and a request had been made to the Magistrate to recall the issuance of non-bailable warrants against him, he did not pass any order on the application, but instead sent the case to the District Magistrate requesting him to transfer it to some other Magistrate. The District Magistrate did not agree and thus the case remained with the learned sub --Divisional Magistrate and Muhammad Iqbal had thereafter to obtain anticipatory bail from the learned Sessions Judge. The last grievance of the petitioners is, that when they informed the learned trial Magistrate on 12th August 1969, that they intended to move an application for the transfer of the case in the High Court, he declined to stay the proceedings.
5. The trial Magistrate was directed to send his pare-wise comments which he did. He has denied that he has friendly relations with Malik I-laq Nawaz Tiwana, former Deputy Inspector General of Police. Lie has denied that Malik Haq Nawaz Tiwana had ever seen him in his Court or at his residence. He also contended that he had no knowledge whether Naib Subedar Sultan Mahmood Khan, the complainant in the case was a relative of Malik Haq Nawaz Tiwana. He had also no knowledge, whether there was enmity between the petitioners and the aforesaid Malik Haq Nawaz Tiwana. He has: also denied the allegation, that because of Malik Haq Nawaz Tiwana he has conducted himself in a manner, which could create apprehension in the minds of the petitioners that they would not get justice at his hands.
6. With regard to the allegation, that because of the absence of Muhammad Iqbal petitioner, he cancelled his bail and issued non-bailable warrants against him, his reply is as follows: - "Muhammad ~Iqbal petitioner failed to appear in Court on 18-3-1909, and a medical certificate in respect of his illness was received. The case was adjourned to 1-4-1969 and Iqbal petitioner was summoned through a notice for the said date. On 1-4-1969, he again did not appear and was stated to have gone to Mianwali in. Connection with his treatment. It was contended by the prosecution on the basis of the affidavits of Sultan Mahmood and Muhammad Azam that Iqbal petitioner was present in the Court premises -in the morning and was intentionally avoiding appearance in Court. His bail as such was cancelled and non-bailable warrants were ordered to be issued against him."
The Magistrate, however, admitted that he did not recall the order of non-bailable warrants and explained that he did not do so, because, he had by then forwarded the file to the District Magistrate for the transfer of the case from his Court.
7. With regard to the last allegation, that in spite of having been informed, that the petitioners intended to move to the High Court for the transfer of the case, he did not stay the proceedings, his explanation is, that-he did not do not in view of the provisions of section 526 (8) of the Code of Criminal Procedure.
8. I have no reason to believe, that the explanation sent by the learned trial Magistrate is incorrect, I am, therefore, not satisfied that he is a friend of Malik Haq Nawaz Tiwana. The action taken by him in issuing non-bailable warrants against one of the petitioners also appears to be just and fair. It does not reveal any prejudice against the petitioner. The learned trial Magistrate is also not to be blamed in refusing to stay, th proceedings, when he was informed that an application for the transfer of the case shall be moved in the High Court because of the fact that on an earlier occasion, as has been pointed above, an application for transfer of the case from his Court, had been made to the High Court -had disposed of by n Muhammad Afzal Zullah, J. In view of the proviso of subsection (8) of section 526 of-the Code of Criminal Procedure, he was not bound to stay the proceedings. The result, therefore is that the conduct of the learned trial Magistrate in these proceedings appears to be above board. I find no cogent ground to allow the petition and the same is hereby dismissed.