JUDGMENT

Agha Haidar, J. - This is an application for the transfer of a case. A lengthy affidavit has been filed on behalf of the applicant and it contains a lot of verbiage. There are number of other allegations too which have been met by the learned Magistrate who has submitted his explanation. There is one matter, however, on which, I am afraid, I cannot agree with the view of the learned district Magistrate. A certain witness named Ganesh Das was being examined, and at the conclusion of the evidence of this witness, the learned District Magistrate ordered his prosecution under Section 193, I.P.C. The Magistrate further ordered that the witness may be detained in Court until the end of the hearing to show cause why he should not be prosecuted. As a matter of fact at the conclusion of the hearing of the case on that date he did formally order his prosecution, acting apparently under the provisions of Section 476, Criminal P.C. The Magistrate in his explanation submits as follows:

The whole attitude and expression of the witness showed so obviously that he was telling lie that the dignity of a Court of law required that immediate notice should be taken of the matter and I accordingly recorded the note referred to.

2. The "note" here refers to the Magistrate's decision ordering action being taken under Section 193, I.P.C. In my opinion, this action of the learned Magistrate, however well intended it may be, was, to say the least of it, precipitate; the proper time, if he was inclined to take action against any witness under Section 476, Criminal P.C., would have been at the time of delivering judgment in the main case. My own view is that such a step as the Magistrate took in the present case is bound to strike terror into the heart of the defence witnesses, and under the circumstances they would be most unwilling to give evidence. This would be very prejudicial to the defence in the case. In a sense the step taken by the learned Magistrate is tantamount to condemning the testimony of one witness at least as false before the trial of the case had concluded. This alone is sufficient to justify the transfer applied for: Golam Bari Gazi v. Yar Ali Khan .

3. Having regard to all the circumstances of the case, in my opinion it would be better if the case were to be transferred to the neighbouring District of, Sheikhupura. I feel certain, in my mind, that the learned Magistrate would have decided the case with perfect impartiality and according to his own lights, but the action taken by him against this particular witness was such as to create a reasonable apprehension in the mind of the accused person that the Magistrate had made up his mind against him. The case may be transferred to the neighbouring District of Sheikhupura, but it is distinctly understood that the evidence, so far as it has been recorded in the case, would stand good and only fresh evidence would be produced on behalf of the defence if the accused persons so wish. The case has been dragged on for a long time, which is regrettable, and I trust the Magistrate, before whom the case now goes, would see to it that there are no adjournments and the case is disposed of as soon as possible.