ALI MUHAMMAD Versus STATE

ORDER

This application for transfer was moved on the following grounds :-

(i) That the petitioner had been placed in column No. 2 and in spite of that the learned Magistrate summoned him as an accused person. The contention raised was that since cognizance was taken under section 190(1) (c) the learned Magistrate was bound to give a chance to the petitioner to say whether he wanted the transfer of the case from that Court or not, and

(ii) that the case was called in the retiring room where the P. S. 1. and the Investigating Officer were also present.

2. A report was called from the learned Magistrate who denied the factual allegation at No. 2 above, as absolutely incorrect. A Second report was called for in order to know at what stage the petitioner had been summoned as an accused person. This shows that the learned Magistrate had summoned the petitioner before any evidence had been recorded. A Court is not bound by the opinion of an investigating agency and if it summons an accused person before recording any evidence, the cognizance cannot be considered to have been taken under section 190 (1) (c) but under section 190(i) (b). Reference in this connection may be made to Muhammad Nawaz Khan v. Nur Muhammad and others (P L D 1967 Lah. 176). The fact that the complainant had also filed a separate complaint, would not change the complexion of the matter because no evidence had been recorded in the complaint.

The petition is without substance and is, hereby, dismissed.

Petition dismissed.