P L D 2020 Lahore 382
(a) Criminal Procedure Code (V of 1898)---
----S. 528---Jurisdiction of Sessions Judge to transfer cases---Scope---Petitioner who was taken into custody in a murder case applied for his post-arrest bail before the Additional Sessions Judge where challan of the said case was already pending adjudication but the application could not be decided due to transfer of the Presiding Officer---Judicial Officer who had taken over, was shown distrust by the complainant and subsequently a series of episodes had erupted in the court proceedings wherein initially allegations of distrust were levelled against the Judicial Officers while few of the Judicial Officers themselves declined to hear the matter assigning one reason or the other---Bail application of the petitioner was transferred to various Judicial Officers by the Sessions Judge for assorted reasons and at least 44 times the proceedings upon the application were postponed---Validity---Judicial powers of Sessions Judge and Additional Sessions Judge were synonymous to each other leaving no edge over the powers of the other---Legislature had introduced the word "Assistant Sessions Judge" in S.528, Cr.P.C., which never meant "Additional Sessions Judge", hence the authority exercised by the Sessions Judge while withdrawing the cases from Additional Sessions Judge in the spirit of S.528, Cr.P.C. seemed to be an authority which was not vested with him---Sessions Judge, therefore, was not vested with the powers to transfer cases from one court of Additional Sessions Judge to the court of another Additional Sessions Judge---Revision petition was allowed by the High Court with direction to the Sessions Judge to entrust the bail application of petitioner to the court where challan of the case was submitted.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 526, 539-A & 528---Penal Code (XLV of 1860), S.21---Transfer application---Transfer of case of subordinate court or itself try by the High Court---Procedure---Affidavit in proof of conduct of subordinate court---"Public servant"---Scope---High Court has three-dimensional powers for the supervision/ superintendence of the courts subordinate to it in the Province, i.e. constitutional jurisdiction, inherent jurisdiction and jurisdiction under general law---Any person who is aggrieved by the conduct of any court subordinate to the High Court can file a petition under S.526, Cr.P.C. if there appears reasonable apprehension of injustice being done due to the conduct of the subordinate court---Such person has to bring forth accusations, having substance, supported by an affidavit duly attested by the 'Oath Commissioner'---However, if during the course of proceedings the accusations so levelled are found to be false, the applicant must prepare himself for legal consequences---Though the provisions of S.539-A, Cr.P.C. relate to word 'public servant', however, as envisaged in S.21, P.P.C., Judicial Officer is a "public servant" in all eventualities---High Court observed that procedure of appending affidavit along with the petition for transfer of the case in criminal proceedings is a sine qua non which cannot be ignored by any stretch of imagination---Intent behind the whole procedure is to provide safeguard and protection to the Judicial Officers from levelling bold allegations with intent to bring their repute in question, hence it is a tool to protect them---Power to transfer case from the court of Additional Sessions Judge to the court of another Additional Sessions Judge lies exclusively with the High Court---High Court shall entertain and decide transfer application if at all compelling reasons justiciable within four corners of law are available, in the safe administration of justice
Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Principles---Scope---Bail is a discretionary relief, temporary in nature, granted to accused till final adjudication of criminal case---Main theme of bail is to hand over the custody of accused in the hands of the surety---Court exercises power under S.497(2), Cr.P.C., if comes to the conclusion that the case of accused is one of further inquiry having room to release him on bail subject to furnishing of bail bond---Liberty of a person is a precious right which has been guaranteed under the Constitution, hence the courts of law in normal circumstances construe and apply S.497(2), Cr.P.C. liberally---Exception to the said principle is embodied in S.497(5), Cr.P.C. which reveals that the same court can recall the order if the order was procured through mis-representation, fraud, undue influence and without touching upon the merits of the case---Said provision is also applicable before the High Court, if the discretionary relief has been granted against the fundamentals of the law and against the principles enunciated by the superior courts---Sufficient possibility exists to contest even the discretionary relief in ordinary proceedings before a court of law.
Before Sayyed Mazahar Ali Akbar Naqvi, Muhammad Waheed Khan andSardar Ahmed Naeem, JJNAVEED HUSSAIN---PetitionerVersusThe STATE and others---RespondentsCriminal Revision No.20823 of 2019, decided on 29th April, 2019. Syed Farhad Ali Shah for Petitioner. Malik Muhammad Asif Ahmad Nissoana, Deputy Attorney General. Syed Ihtesham Qadir Shah, Prosecutor General Punjab with Mian Muhammad Awais Mazhar and Muhammad Naveed Umar Bhatti, Deputy Prosecutors General. Asif Afzal Bhatti and Ch. Jawad Yaqoob, Assistant Advocates-General. Azam Nazeer Tarar, Usman Naseem, Mian Ali Haider, Ijaz Haider Jaffari, Abdullah Javed and Ms. Shazia Parveen, Advocates/Amici Curiae. Abdul Majeed, Complainant in person.
ORDER
By means of instant revision petition filed under Sections 435/439, Cr.P.C. the petitioner has made prayer as follows:-
"In view of the above submissions made above, it is most respectfully prayed that the instant petition may kindly be accepted and impugned order dated 29.03.2019 passed by the learned Sessions Judge, Lahore, may very kindly be set aside being there is no provision of regarding reference a case as many times.
It is further prayed that the pending bail application of the present petitioner may very kindly be entrusted to the concerned trial court for appropriate decision.
Any other relief which this Hon'ble Court deems fit and proper may also be granted in the favour of the petitioner".
2. The revision petition in hand came up for hearing before this Court on 09.04.2019 in Single Bench, but keeping in view the peculiar facts and circumstances of the case coupled with importance of the issue, the matter was sent to the Hon'ble Chief Justice for constitution of Full Bench with the following observations:-
"Liberty of a person is a precious right, which has been guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973. The frequent transfer of bail applications from one Court to another Court under undue pressure by various lawyers for decision of a matter as per their own choice has become a compelling practice before the subordinate courts. This practice has already ruined the judicial system of our country, which cannot be allowed to continue. In view of such facts and circumstances, notice is issued to Prosecutor General Punjab to appear in person. Notice is also issued to the Advocate General-Punjab.
Keeping in view the importance of the matter, the same is referred to the Hon'ble Chief Justice of this Court for constitution of Full Bench in this regard..."
In view of the afore-said reference, the Hon'ble Chief Justice vide order dated 12.04.2019 constituted the instant 'Full Bench'.
3. At the very outset, while opening his arguments, learned counsel for the petitioner submits that the petitioner is behind the bars in a case bearing FIR No.302, dated 28.08.2017, offences under Sections 302, 324, 109, 148, 149, P.P.C., read with Section 7 Anti Terrorism Act, 1997, (subsequently deleted), registered with Police Station, Barki, Lahore, at the instance of Abdul Majeed, complainant/ respondent No.2. It has been argued that the petitioner filed post arrest bail application before the learned trial court on 14.01.2019 which was entrusted to Mr. Nadeem Akhtar Tabassum, Additional Sessions Judge, Lahore and the complainant got adjournments from the said court on one pretext or the other and the petition remained pending there till 29.01.2019 when the said Judicial Officer was transferred. Subsequently, Mr. Fayyaz Ahmad Buttar, Additional Sessions Judge, Lahore, took over the charge on 04.02.2019, from whom adjournments were being sought by the complainant party. Thereafter in response to filing of an application by the complainant seeking transfer of the bail petition, 'reference' was sent by the said learned Court on 19.02.2019 to the learned District and Sessions Judge, Lahore, as such said bail application was entrusted to Mr. Sajawal Khan, learned Additional Sessions Judge, Lahore, on 20.02.2019. Learned counsel submits that on 27.02.2019, learned counsel for the complainant made statement that "he does not want this petition to be heard by this court", upon which another 'reference' was sent by the aforesaid court, but the learned District and Sessions Judge, Lahore, declined the same on 01.03.2019, resultantly bail petition was returned back to the same Court but it kept on pending/ lingering on till 09.03.2019 when learned counsel for the complainant stated that "he does not trust this court", due to which again 'reference' was sent to the learned District and Sessions Judge, Lahore and as such the same was entrusted to Mian Javaid Akram Baitu, learned Additional Sessions Judge, Lahore on 11.03.2019. It is submitted that on 25.03.2019, 'reference' was also sent by the said learned court on the statement of learned counsel for the complainant in the following terms:-
"he does not want the decision of this bail post-arrest application from this court..."
and as a consequence whereof the bail application was further entrusted to Mr. Muhammad Nawaz Marth, learned Additional Sessions Judge, Lahore, where the said bail application is still pending adjudication. Learned counsel for the petitioner further submits that post-arrest bail application of the petitioner is pending since 14.01.2019 and the same has been placed for hearing before different courts on as many as forty-four times, during which 'last opportunity', 'absolute last opportunity' and 'final opportunity' along with undertaking from the counsel were granted liberally. It is argued that during the aforesaid period, the complainant has engaged as many as five counsel just to prolong the proceedings with ulterior motives despite of the fact that according to prosecution own accusations the petitioner's involvement in the case in hand is only to the extent of offence under Section 109, P.P.C. Learned counsel vigorously argues that trial in this case has already commenced, hence, the learned District and Sessions Judge has no power to transfer the case, which undeniably is an ancillary matter and any order to transfer bail application is a complete departure from the law of the land. It has been finally argued that the whole proceedings carried out in the adjudication of the bail application is nothing but a mockery in the process of law.
4. Mr. Ihtesham Qadir Shah, Prosecutor General, who entered appearance in response to the Court's notice, vehemently argues that under Articles 202/203 of the Constitution of Islamic Republic of Pakistan, 1973, this Court, apart from being a Constitutional Court, has also been vested with the powers of supervision/superintendence over the performance of all the classes of courts in the Province. While referring Section 528, Cr.P.C. learned Prosecutor General submits that the learned District and Sessions Judge cannot transfer the cases pertaining to the courts of Additional Sessions Judges; rather he can only withdraw the same from the Assistant Sessions Judges (Magistrate Section-30) if certain unavoidable reasons do exists and mentioned therein, however such powers should be exercised with due care and caution strictly in accordance with the dictates of justice. He adds that the plain reading of Section 526, Cr.P.C. clearly reflects that power to transfer cases pertaining to sessions trial is solely within the domain of High Court. It has been submitted that the bail petition being an ancillary matter in isolation cannot be transferred by the Sessions Judge; however the High Court has authority to decide such type of petitions provided there exist genuine compelling reasons supported by an affidavit. While elaborating this aspect, he submits that the provisions of filing of an affidavit along with the application in terms of Section 539-A, Cr.P.C. denotes that sanctity and fairness has been attached to the judicial proceedings conducted by a Judicial Officer and that cannot be ignored on the basis of bald allegations.
5. Mr. Asif Afzal Bhatti, Assistant Advocate General representing the Advocate General Punjab, Mr. Azam Nazeer Tarar and Mian Ali Haider, Advocates, appointed by the Court as Amici Curiae, also supported the arguments advanced by learned counsel for the petitioner, as well as, learned Prosecutor General Punjab. So far as transfer of the matters is concerned, Mr. Azam Nazeer Tarar, Advocate/Amicus curie contends that after the induction of Qisas and Diyat Ordinance and being part of Pakistan Penal Code, the scope of Section 493, Cr.P.C. has been widened and though the Public Prosecutor still holds the edge over the private complainant, but in view of the provisions of Section 417(2-A), Cr.P.C. and right of filing of private complaint by the complainant has extended the parameters of consultation with the Public Prosecutor with a slight tilt in favour of the complainant. It is next contended that the District and Sessions Judge is not empowered to transfer such like cases so frequently, but in appropriate matters and cases of urgency, it should be within the domain of the District and Sessions Judge, as it has been legislated and amended under Sections 407 and 408 of the Code of Criminal Procedure, 1973, in India, but frankly concedes that it requires constitutional amendment in the general law.
6. We have heard learned counsel for the parties and gone through the submissions made by learned Law Officers, Prosecutor General and amici curiae.
7. The matter before us relates to an issue in which the petitioner was taken into custody in a murder case wherein accusation levelled against the petitioner was subject matter of case bearing FIR No.302, dated 28.08.2017, offence under Sections 302, 324, 109, 148, 149, P.P.C., read with Section 7 Anti-Terrorism Act, 1997, (subsequently deleted), registered with Police Station, Barki, Lahore. He applied for his post-arrest bail before the learned trial court where challan of the said criminal case was already pending adjudication but the said application could not be decided due to transfer of the Presiding Officer. Thereafter the Judicial Officer who had taken over, was shown dis-trust by the complainant and subsequently a series of episodes had erupted in the court proceedings wherein initially allegations of distrust were levelled against the Judicial Officers while few of the Judicial Officers themselves declined to hear the matter assigning one reason or the other. It is a matter of grave concern for us that we are dealing with such an issue which has emerged epidemic especially before the District Judiciary. It is observed with pain that if this practice is allowed to continue, it might hamper the judicial system leaving no room for the pillars of the state to have any chance to rectify it in future. Perusal of record available on file further reveals that bail application of the petitioner had been transferred to various Judicial Officers for assorted reasons beyond the scope of law and atleast 44 times the proceedings upon the application were postponed. The crux of the issue is that it is being adjourned with an intent to prolong the matter to keep it pending, hence in all eventualities it is deemed a glaring example of abuse of process of court.
8. As far as status of a bail application is concerned, when evaluated on the legal premises, it is always deemed discretionary relief temporary in nature till the final adjudication. The main theme of bail is to hand over the custody of the accused in the hands of the surety. This remains till final adjudication and the same is brainchild of Section 497, Cr.P.C. The courts exercise powers under Section 497(2), Cr.P.C. if it comes to the conclusion that the case of accused is one of further inquiry having room to release him on bail subject to furnishing of bail bonds. Liberty of a person is a precious right which has been guaranteed under the Constitution, hence the courts of law in normal circumstances construe and apply aforesaid provision liberally. However, there is an exception to this principle, which is embodied in Section 497(5), Cr.P.C. Perusal of Section 497(5), Cr.P.C. reveals that the same court can recall the order if the same has been procured through mis-representation, fraud, undue influence and without touching upon the merits of the case. This provision is also applicable before this Court, if the discretionary relief has been granted against the fundamentals of the law, further against the principles enunciated by the Superior Courts from time-to-time. Hence there is sufficient possibility to contest even the discretionary relief in ordinary proceedings before the courts of law. Despite having ample opportunities to contest, we have observed that in recent past, a tendency has arisen that the parties are adamant to have adjudication of bail application with an intent to procure the result of their own choice, which has created a menace before the District Judiciary. The members of legal fraternity being very nominal against the total strength are showing such a hostile attitude which has become day to day business before the learned trial courts, which perhaps made it a matter of serious concern for the Judicial Officers while discharging their duties with an independent application of mind, rather it had created an intermittent atmosphere not conducive to perform duties in accordance with law. Due to such unprecedented hostile atmosphere, which undeniably is being faced by them, as a consequence they have opted to introduce another vent to avoid any untoward incident while introducing terminology "last opportunity, absolute last opportunity, final opportunity" and above all initiated a practice of sending "reference" to the learned Sessions Judge for transfer of the case if at all it becomes unbearable. We cannot lose sight of the fact that the Judicial Officers are compelled to discharge their duties in an unethical, hostile and unprecedented atmosphere, hence they cannot be burdened with any irresponsibility arising out of the prevailing circumstances, therefore, a strict action is squarely required by the authority against the delinquent while it is also expected from the senior members of the legal fraternity to come forward to be instrumental to curb this practice which in other words has virtually been highjacked by a very nominal strength of lawyers to save this institution with full force without further loss of time.
9. We have also scrutinized the practice of sending reference by the learned Additional Sessions Judge to the Sessions Judge and evaluated on the touchstone of legal premises. There is no second cavil to this proposition that the judicial powers of the learned Sessions Judge and Additional Sessions Judge are synonym to each other leaving no edge over the powers of the other. As far as the authority exercised by the learned Sessions Judge under Section 528, Cr.P.C. is concerned, the legislature has introduced the word "Assistant Sessions Judge" which never means "Additional Sessions Judge", hence the authority exercised by the learned Sessions Judge while withdrawing the cases from Additional Sessions Judge in the spirit of Section 528, Cr.P.C. seems to an authority which is not vested with him. Section 528, Cr.P.C. is reproduced as under for ready reference: -
Section 528. Sessions Judge may withdraw cases from Assistant Sessions Judge. (1) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Sessions Judge subordinate to him.
(1A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(1B) Where a Sessions Judge withdraws or recalls a case under subsection (1) or recalls a case or appeal under subsection (1A), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.]
(1C) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
Explanation. Omitted by Law Reforms Act 1997 (Act No. XXIII of 1997).
(2)&(3) [Omitted by Act XXI of 1976. ]
(4) Any Magistrate may recall any case made over by him under section 192, subsection (2), to any other Magistrate and may inquire into or try such case himself.
(5) A Magistrate making an order under [preceding subsection] shall record in writing his reasons for making the same.
Bare reading of above said provision of law makes it clear that the learned Sessions Judge is not vested with the powers to transfer cases from one court of Additional Sessions Judge to the court of another Additional Sessions Judge, hence any exercise of such power by the learned Sessions Judge qua transferring the case from the court of one Additional Sessions Judge to another is squarely beyond the mandate of law.
10. This Court is conscious of the fact that a question may arise that if a person is aggrieved by the conduct of any court subordinate to High Court, what sort of remedy is available to him for the redressal of his grievances. To resolve this anomaly, we have seen that the High Court has three-dimensional powers for the supervision/superintendence of the courts subordinate to it in the province:-
(i) Constitutional jurisdiction;
(ii) Inherent jurisdiction; and
(iii) Jurisdiction under general law.
Any person who is aggrieved can file a petition before this Court under Section 526, Cr.P.C. if there appears reasonable apprehension of injustice being done due to the conduct of the court subordinate to the High Court. The said grievances must be agitated before this Court but should be supported by legal requirements of law. It would be advantageous to go through provisions of Section 526, Cr.P. C. which read as follows:-
Section 526. High Court may transfer case or itself try it. (1) Whenever it is made to appear to the High Court:-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to the general convenience of the parties or witnesses, or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order:
(i) that any offence be inquired into or tried by any Court not empowered under sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence.
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case or appeal be transferred to and tried before itself; or
(iv) that an accused person be sent for trial to itself or to a Court of Session.
(2) When the High Court withdraws for trial before itself any case from any Court [....] it shall observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.
(3) The High Court may act either on the report of the lower Court, or the application of a party interested, or on its own initiative.
(4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Advocate-General, be supported by affidavit or affirmation.
(5) When an accused person makes an application under this section the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this section award by way of compensation to the person opposing the application.
(6) Notice to Public Prosecutor of application under this section. Every accused person making any such application shall give to the Public Prosecutor notice in writing of application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application.
(6A) When any application for the exercise of the power conferred by this section is dismissed, the High Court may if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding [five hundred rupees] as it may consider proper in the circumstances of the case.
There is no denial to this fact that the powers conferred to the High Court in three dimensional capacity as mentioned above are overwhelming but these cannot be agitated in a stereotype fashion rather the same have to be exercised while keeping it within the four corners of law after fulfilling all the legal requirements. Guidance in this regard is sought from a salutary judgment of the Apex Court handed down in the case of MUHAMMAD NAWAZ v. GHULAM KADIR and 3 others (PLD 1973 Supreme Court 327).
11. Perusal of statute further clarifies that if any person, who is aggrieved by the conduct of court subordinate to the High Court, if moves an application whatever the averments of the application are, that should be supported by an affidavit because the same is a legal requirement. Provision of Section 539-A, Cr.P.C. is reproduced as under:-
"539-A. Affidavits in proof of conduct of public servant. (1) When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the applications by affidavit, and Court may, if it thinks fit, order that evidence relating to such facts be so given.
An affidavit to be used before any Court other than a High Court under this section may be sworn or affirmed in the manner prescribed in section 539, or before any Magistrate.
Affidavits under this section shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such as he has reasonable grounds to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief.
(2) The Court may order any scandalous and irrelevant matter in affidavit to be struck out or amended."
12. Plain reading of the above said provisions embodied in the Criminal Procedure Code i.e. 528, 526, 539-A, when evaluated conjointly it makes it abundantly clear that if any person is aggrieved by conduct of the court he has to bring forth such accusation which is having substance supported by an affidavit duly attested by the 'Oath Commissioner'. However, if during the course of proceedings the accusations so levelled are found to be false, the applicant must prepare himself for legal consequences. Though the provisions of Section 539-A, Cr.P.C. relate to word 'Public Servant', however, as envisaged in Section 21 of Pakistan Penal Code Chapter 2 General Explanation, Judicial Officer is a Public Servant in all eventualities. Hence the procedure of appending affidavit along with the petition for transfer of the case in criminal proceedings is a sine-qua which cannot be ignored by any stretch of imagination. The intent behind the whole procedure is to provide safeguard and protection to the Judicial Officers from levelling bold allegations with intent to bring their repute in question, hence it is a tool to protect them. It is an admitted fact that post arrest bail petition in the matter in hand was moved before the learned Additional Sessions Judge on 14.01.2019 and till today the same has not been decided so far. To determine the legality of the same is exclusively within the domain of the learned trial court, therefore, we are restrained to make any observation, but the fact remains that this application has not been decided so far despite the elapse of more than four and half months. Hence, the pendency of the bail petition before Additional Sessions Judge till today is a glaring example of withholding of right of liberty, if so accrues, which has been extended by the Constitution of Islamic Republic of Pakistan, 1973.
13. In sequel to what has been discussed above, we are of the considered view that the learned District and Sessions Judge has no authority to transfer the case from one Additional Sessions Judge to another except entrustment of fresh cases in administrative capacity. Any subsequent transfer of the case from one court to another exclusively lies with the High Court to entertain and decide if at all compelling reasons justiciable within four corners of law are available, in the safe administration of justice.
14. The instant revision petition is allowed in the above said terms with a direction to the learned Sessions Judge, Lahore, to immediately entrust the bail application of the petitioner to the court where challan of the case already stands submitted.
15. Before parting with the order we have felt persuaded to direct the Registrar of this Court to circulate this judgment amongst all the District and Sessions Judges in the Province for its compliance in letter and spirit to follow it in future.
SA/N-38/L Petition allowed.
0 Comments