Power Of Sessions Judge To Transfer A Case, From One Additional Sessions Judge, To Another Additional Sessions Judge, In Which Charge Has Been Framed

POWER OF SESSIONS JUDGE TO TRANSFER A CASE, POWER OF SESSIONS JUDGE TO TRANSFER A CASE, FROM ONE ADDITIONAL SESSIONS JUDGE, TO ANOTHER ADDITIONAL SESSIONS JUDGE, IN WHICH CHARGE HAS BEEN FRAMED By Mr. Justice Rahmat Hussain Jafferi, Judge, High Court of Sindh There are two views on the subject. Some of the jurists are of the view that the Sessions Judge has power to assign or transfer the case, from one Additional Sessions Judge to another Additional Sessions Judge in which charge has been framed when the former ceased to exercise jurisdiction in the Sessions Court and section 528, Cr.P.C. will not be applicable to such case. They are of the further view that under section 528, Cr.P.C. the Sessions Judge has no powers to transfer the case from an Additional Sessions Judge who had framed the charge, till he is posted on the said post. The other category of jurists are carrying the view that the Sessions Judge has no jurisdiction to transfer the case from an Additional Sessions Judge, once the charge has been framed in the case even if he is transferred or ceased to. exercise jurisdiction in the Sessions Court. These jurists are of the view that section 528, Cr.P.C. completely bars such transfer. On the above subject there is also conflict of opinion in the High Court of Lahore in the case of Mushtaque Ahmed v. State 1982 PCr.LJ 298 which supports the first view and Muzmal S. Shafkat v. Muhammad Farooq 1995 PCr.LJ 1157 which supports the latter view. Benches of Single Judge of the High Court of Lahore have given both the decisions. The facts of the case of Mushtaq Ahmed v. State, 1982 PCr.LJ 298 are that the petitioner along with three others was facing trial under section 302/34, P.P.C. before Rao Iqbal Ahmed Khan, Additional Sessions, Judge, Lahore, who was promoted and posted as Sessions Judge, Bahawalnagar, leaving the case along with other cases as part-heard. He left the charge on some date in the month of June, 1981. The learned Sessions Judge, Lahore vide order dated the 28th June, 1981 entrusted the case to Syed Muhammad Rafiq Shah, Additional Sessions Judge, Lahore for further proceedings. The case had been earlier adjourned to 30th June, 1981 by Rao Iqbal Ahmed Khan. In consequence of order dated 28th June, 1981, the case came up for further trial before Syed Muhammad Rafiq Shah. An objection was taken on behalf of the accused that Syed Muhammad Rafiq Shah had no jurisdiction to try the case, as the case had not been legally entrusted to him. Learned Additional Sessions Judge after recording the objections, sent the file to the learned Sessions Judge along with the application containing objections of the accused. The matter was put up before the learned Sessions Judge and after hearing the parties, he passed the order dated ' the 9th July, 1981. It will be of interest to mention here that till then no Additional Sessions Judge was posted in place of Rao Iqbal Ahmed Khan. Mr. Aqil Ahmed Khan, Additional Sessions Judge was stated to have been appointed in place of Rao Iqbal Ahmed Khan vide notification dated the 8th August, 1981, about a month later. ??????????? At page 300 it has been observed as under: "The power for entrusting the cases or appeals to the Additional Sessions Judge is derived from the provisions of section 193(2) of the Code of Criminal Procedure. It will be of interest to mention here that in whole of the Code of Criminal Procedure, no independent existence of the office of the Additional Sessions Judge to act as judicial officer in any case unless transferred or " entrusted to him, exists. The natural corollary therefore, will be that Additional Sessions Judges are appointed to cope up with the work of the Sessions Division, and are placed at the disposal of the Sessions Judge who can by provisions of section 193(2), Cr.P.C. distribute and entrust the work to them. Obviously the Additional Sessions Judge by virtue of posting orders does not drive powers for exercising jurisdiction or holding trial of any case merely by virtue of his posting in the District whether his appointment is afresh or he succeeds somebody on transfer. As the powers of the Additional Sessions Judge to hold trials and hear appeals and other matters do not flow from the order of his posting, he cannot take up any case by himself. The cases shall have to be entrusted to him by the Sessions Judge. The Sessions Judge, therefore, will always be in a position to redistribute the work whenever a situation arises and the entrustment of any of the cases from one Additional Sessions Judge to another will be deemed to mean that a Additional Sessions Judge to whom the case has been entrusted is a "successor" of the one who was trying the case earlier. This power continues even after the amendment in section 350 of the Code of the Criminal Procedure regarding cases which are under trial and have been partly heard. Of course, the power of redistribution is not to be exercised by the Sessions Judge unless the Additional Sessions Judge holds the post and is not transferred or promoted or ceased to hold office in any other manner". The facts of the case of Mst. Muzammel S. Shafqat v. Muhammad Farooq, 1995 PCr.LJ 1157, are that the petitioner, had challenged the entrustment order dated 26-6-1994, passed by the learned District and Sessions Judge, Lahore transferring all the cases including the part-heard murder case, previously pending on the file of Mr. Khadim Hussain Malik, to an other Additional Sessions Judge, Mr. Muhammad Siddique Girwa. The petitioner also challenged the validity of the murder trial being conducted by Mr. Muhammad Siddique Girwa, on the ground that as that case was partly heard, only a successor of Mr. Khadim Hussian Malik, the learned Additional Sessions Judge, could have continued hearing of the case. The learned counsel for the petitioner asserted that no one was appointed in place of Mr. Khadim Hussain Malik; hence a de novo trial was called for in that case, and an Additional Sessions Judge appointed against an existing vacancy and not as a substitute of the outgoing Additional Sessions Judge, cannot carry on hearing of the part heard case, without proper entrustment by the competent authority. After considering the case of Mushtaque Ahmed, (supra) at pages 1161 and 1162, it has been observed as under: "9. It is obvious from a plain reading of these sections that section 193 deals with the original entrustment in the first place. Section 528 deals with any transfer before the commencement of the trial. Section 350 deals with the cases where a `successor' is appointed. In this writ petition as stated in the facts mentioned above, the original entrustment of this murder case under section 193(2) was made by the learned District and Sessions Judge, Lahore to Mr.Khadim Hussain Malik, Additional Sessions Judge, and that exhausted the power of the learned District and Sessions Judge under section 193(2).Section 528 only empowers the learned Sessions Judge to recall any case or appeal which tic has made over to any Additional Sessions Judge at any time before the trial of the case or the hearing of the appeal has commenced. The said section further empowers the transferring authority either himself to hear the case or the appeal which has been recalled or withdrawn or make it over to another Court for trial or hearing as the case may be. 10. In the present case the hearing had already commenced and the murder case was left part-heard by Mr. Khadim Hussain Malik, Additional Sessions Judge. I am afraid that in the present case, the learned Sessions Judge could not have exercised any authority under section 528(1-A) to transfer the part-heard cases to another Additional Sessions Judge. As far as section 350 is concerned, it does not appear relevant in this case, because Muhammad Siddique Girwa, learned Additional Sessions Judge to whom the part-heard murder case had been transferred, was not posted as a successor of Khadim Hussain Malik by the High Court, who is the only competent authority to do so." I have minutely gone through both the above referred decisions and find that no detail discussions have been made in support of both the views. However, I have gone through various provisions of the Cr.P.C. and find that the point involved in the case cannot be properly understood and appreciated without examining the scheme of Criminal Procedure Code to deal with the situation and the procedure and working of the Sessions Court. In order to appreciate the point I have examined various provisions of Criminal Procedure Code (hereinafter referred to as `the Code'), such as, sections 6, 9, 40, 190, 193, 177, 350, 528, 559 and relevant circulars of Federal Capital and Sindh Courts Criminal Circulars. COURTS. Under the scheme of the Code, apart from the High Court and other Courts created under other laws, there are two Courts viz. Courts of Session and Courts of Magistrates. Subsection (1) of section 6 reads as under:-‑ "Classes of Criminal Courts and Magistrates.?(1) Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely:--- (i) Courts of Session; (ii) Courts of Magistrates" I will deal with the Courts of Session because the matter pertains to the said Courts. Section 9 deals with the establishment of Courts of Session and appointment of Judges in such Courts, Section 9 reads as under:-‑ "9. Court of Session.---(1) The Provincial Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court. (2) The Provincial Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but until such order is made the Courts of Session shall hold their sittings as heretofore. (3) The Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. (4) A Sessions Judge of one Sessions Division may be appointed by the Provincial Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either Division as the Provincial Government may direct. (5) All Courts of Session existing when this Code comes into force shall be deemed to have been established, under this Act." A bare reading of section 9 reveals that under subsection (1) the Provincial Government is required to establish a Court of Session for every Sessions Division and appoint a Judge of such Court. (The said Judge is known as Sessions Judge). Under subsection (3), which is very relevant, the Provincial Government is authorized to appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. The important point to be noted is that under subsection (1) after creating a Court of Session in a Sessions Division, a Judge is to be appointed who is known as Sessions Judge. Presently in every Sessions Division, there is only one Sessions Court and a Judge has been appointed to preside over such Court. Thus, the Sessions Courts are complete in each division of the Province. The difference between Sessions Judge and Additional or Assistant Sessions Judges, is that the Additional or Assistant Sessions Judges are simply appointed to exercise jurisdiction in the Sessions Court, which is presided over by the Sessions Judge. By virtue of their appointments, the Additional or Assistant Sessions Judges themselves do not constitute any other Courts but they are part and parcel of already created Sessions Court in a Sessions Division. By appointing Additional or Assistant Sessions Judges, the Provincial Government does not establish separate or new Courts to be presided over by such Officers but they are appointed to exercise jurisdiction in the Sessions Court, which has already been created and presided over by the Sessions Judge. This basic difference in both the appointments should be kept in view so that the further discussion on the subject can be understood properly. Generally, Additional Sessions Judges are treated as separate -Courts. It has been noted in the heading of Judgments delivered by the Additional Sessions Judges that they are writing "In the Court of Additional Sessions Judge??????????? "In fact, under section 6, of the Code no Court is created by the name of" :Court of Additional Sessions Judge". The Code does not recognize any other Court except a Court of Session. It is pertinent to point out that when in a Sessions Division more than one Additional Sessions Judges are appointed, they are being named as 1st, 2nd , 3rd Additional Sessions Judges. The Government or Administration for their own convenience are naming and designating the said Additional Sessions Judges as 1st 2nd and 3rd Additional Sessions Judges, or Additional Sessions Judge (Hudood) or Additional Sessions Judge (car lifting) etc. The designations or nomenclatures given to the Additional Sessions Judges by the, Government or Administration are alien and foreign to the Code. The said nomenclatures are not recognized by the Code but nomenclatures or designations recognized by the Code for these officers are only Additional Sessions Judges or Assistant Sessions Judges. Thus, the basic designation of the Additional Sessions Judge, whatever the nomenclature may be assigned to him by the Government or Administration will not be changed. They will be treated and continued to be recognized as Additional Sessions Judges or Assistant Sessions Judges by the Code. As regards treating the Additional Sessions Judges as separate Courts, it is suffice to say that they are wrongly being treated or written as "the Court of Additional Sessions Judge". This difference can very well be appreciated when we examine the Civil Jurisdiction of Additional District Judge under section 3 of Civil Court Ordinance, 1962 a separate Court in the name of "Court of the Additional District Judge" is created along with the Courts of District Judge and Civil Judge. The said provision reads as under:-‑ "3. Classes of Courts.--.Besides the Court of Small Causes established under Provincial Small-Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:-‑ (a) The Court of the District Judge; (b) The Court of the Additional District Judge; and (c) The Court of the Civil Judge." Thus for the purpose of Civil jurisdiction, the legislature has created a Court of Additional District Judge. But for the purpose of exercise of Criminal jurisdiction no Court by the name of the Court of the Additional Sessions Judge has been created under Code. The legislature has created only one Court in the name of Court of Session. The Additional Sessions Judges while deciding the Sessions cases are not justified by designating themselves as the Court of Additional Sessions Judge. It is wrong notion, which is alien, foreign and not recognized by the Code. From the above position, it is manifest that in a Sessions Division there is only one Court by the name of "Court of Session" which is presided over by the Sessions Judge. The Additional Sessions Judges are appointed to exercise jurisdiction in the Court of Session while deciding the Sessions cases. Therefore the Additional Sessions Judges while writing judgments, their heading should be: "In the Court of Sessions ??????" "Presided over by Mr????????? Additional Sessions Judge. INSTITUTION OF CASES BEFORE THE COURT OF SESSION. The Sessions Court, by itself has no jurisdiction to take direct cognizance of any offence [Section 193(1)]. The Procedure for taking cognizance is that when a case exclusively trialable by the Court of Session is challaned, first it is to be presented before the Court of Magistrate of First Class. The said Magistrate takes the cognizance of the offence and without recording any evidence, sends the case to the Court of Session for trial as required under sections 190(1) and (2) of the Code. The said provisions read as under:-‑ ?190. Cognizance of offences by Magistrate.-(1) Any Magistrate of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence--‑ (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Session for trial. (2) A Magistrate taking cognizance under subsection (1) of an offence trialable exclusively by a Court of Session shall, without recording any evidence,(send the case to Court of Session for trial.) Under subsection (1) of section 193 of the Code, the Court of Session takes cognizance on two occasions. (1) When case is sent up to the Court of Session by the Magistrate under section 190(2) of the Code. (2) In special cases, when the same is expressly directed by the Code or by any other law. In the former case after receipt of the case from the Magistrate, the Court of Session is required to take cognizance and then proceed further for trial. Under subsection (2) of section 193 of the Code, the Additional and Assistant Sessions Judges are barred to try Sessions cases directly. The Additional and Assistant Sessions Judges can try only such cases which the Provincial Government or the Sessions Judge of the Division, may by general or special order direct them to try or make over to them for trial. The Section 193 of the Code reads as under:-‑ "193. Cognizance of offences by Courts of Session.--(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction (unless the case has been sent to it under section 190, subsection (2)) (2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial." Thus, it is clear that Additional and Assistant Sessions Judges have no power to try cases by themselves without the above mentioned directions of the Provincial Government or making over the cases by the Sessions Judge. 'The specific bar to try the cases directly by the Additional and Assistant Sessions Judges, created under the above provision clearly demonstrate the intention of legislature that without such direction and making over cases as referred to above, the said Judges cannot try the cases. Under section 9, of the Code when Additional and Assistant Sessions Judges are appointed by the Provincial Government they are appointed, only to exercise jurisdiction of the Sessions Court in a Sessions Division or more Divisions. The Provincial Government, after initial appointments of Additional and Assistant Sessions Judges, under service laws, places the said Judges at the disposal of the High Court to post them in any Sessions Division. At that stage no other function is to be performed by the High Court in respect of the Additional and Assistant Sessions Judges except to post them in a Sessions Division or subsequently transfer or re-transfer them to any other Sessions Division. As such, mere posting of the Additional and Assistant Sessions Judges in a Sessions Division will not authorize them to exercise jurisdiction in the Sessions Division or to try the cases unless an order firstly U/S 6(3) of the Code is passed by the Provincial Government and such notification is issued. Without such notification, the said Judges cannot exercise jurisdiction in any Sessions Division. It has been held by the Hon'ble Supreme Court of Pakistan in a case Shoukat Hayat v. Government of Sindh (1989 SCMR 774) that if an Additional Sessions Judge tries any case without the investment of jurisdiction as required under section 6(3) of the Code, then his orders will be void. Once such Notification is issued then the Additional and Assistant Sessions Judges will carry those powers wherever they are posted, transferred or re-transferred by virtue of section 40 of the Code, which reads as under:-‑ "Powers of officers appointed.--Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same Provincial Government, he shall, unless the Provincial Government otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed." As such, no further notification is required to be issued by the Provincial Government in respect of such officers if they are transferred from one Sessions Division to another Sessions Division. Once the Additional or Assistant Sessions Judge is posted in a Sessions Division, then the bar contained in section 193(2) of the Code will apply to the said Judge for trial of a case or cases, unless the said bar is removed by issuing a direction or making over of a case or cases given/made by the Provincial Government or the Sessions Judge respectively. The said order will authorize only such Judge to try such case or cases, which are made over to him and for that Division only. Thus, even if the Additional or Assistant Sessions Judge is posted in any Sessions Division with the powers to exercise jurisdiction under section 6(3) of the Code in the Sessions Division, will not by itself give authority to the said officer to try a case or cases of said Division unless an order within the meaning of section 193(2) of the Code is passed by the competent authority, to remove the bar contained thereunder. As such for removal of such bar the order as required under section 193(2) is must whenever such Judge is posted in a Sessions Division. This bar is applicable and operative to the Additional and Assistant Sessions Judges who are posted in any Sessions Division either through initial appointment and posting or subsequent transfer. The Addl. or Assistant Sessions Judges cannot carry these powers to any other Division as the Provincial Government or Sessions Judge directed the particular Judge to try a particular case or cases of a particular Sessions Division having territorial limits, and to exercise such, powers in that .particular Division alone. It is the mandate of section 177 of the Code that ordinarily every offence shall be tried by a Court within the local limits of whose jurisdiction it was committed unless the High Court under section 526 of the Code changes venue of trial. Thus, whenever an Additional or Assistant Sessions Judge is posted, transferred or re-transferred from one Sessions Division to another, an order within meaning of section 193(2) is required to be passed by the Provincial Government or the Sessions Judge of such Division "to remove the bar of the trial of case or cases by the Additional or Assistant Sessions Judge. Without passing such order the Additional or Assistant Sessions Judge by virtue of their posting, transfer or retransfer can not try any case. Procedure. After receipt the case from the Magistrate, the same is placed before the Presiding Officer (Sessions Judge) of the Sessions Court. The Sessions Judge after taking the cognizance within the meaning of section 193(1), of the Code sends the case-to the office to be entered in the Register of Sessions cases as required under Circular 7, Part-A of Chapter IV of Federal Capital and Sindh Courts Criminal Circulars. The Office assigns a number to the case and enters it in the said Register. Thereafter the Sessions Judge either decides to try the case himself or makes it over to any Addl. Sessions Judge posted in the Division to exercise jurisdiction of the Sessions Court. If Sessions Judge makes over the case to Additional Sessions Judge, such entry is made in the Register of Sessions case against the number of the said case. The Addl. Sessions Judge after receipt of the case starts exercise jurisdiction of Sessions Court in that particular case only. The said Addl. Sessions Judge gives no separate number to the said case. The Federal Capital and Sindh Courts Criminal Circulars do not provide any separate Register for Addl. Sessions Judge. The number assigned to the said case by Sessions Court would remain the same as given to it under the Register of Sessions cases kept in the office of Sessions Judge. Thus, the case would remain on the file of Sessions Court, whose Presiding Officer is Sessions Judge even if the case is made over to the Additional Sessions Judge for the simple reason that the said Additional Sessions Judge is required to simply exercise jurisdiction of the Sessions Court in respect of the said case. The case was also simply made over to the Additional Sessions Judge for the trial only. After decision of the case by the Additional Sessions Judge, the required particulars are written in the register kept in the office of Sessions Court. Until the time the said Additional Sessions Judge is posted in the Sessions Division, the Sessions Judge has no power to recall the said case from the said Addl. Sessions Judge if charge has been framed by him, as provided by section 528 (IA), of the Code because framing of the charge is the first step towards the trial of the case. The said section reads as under :-‑ "(1-A) 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." If the said Addl. Sessions Judge is transferred, or retired or ceased to exercise jurisdiction in the Sessions Court of the Sessions Division, the said case being on the file of the Sessions Court, whose presiding officer is Sessions Judge can be dealt with in the manner as the Sessions Judge may deem fit, either to try the case himself or make it over to some other Additional Sessions Judge for the reason that if any other Additional Sessions Judge is posted in the Division either in place of the Additional Sessions Judge who was transferred, retired or ceased to exercise jurisdiction in the Sessions Court of the Division, he cannot try the case unless an order within the meaning of section 193(2) of the Code is passed by the Provincial Government or Sessions Judge allowing the said Additional Sessions Judge to try the said case or any other case. As already observed, mere posting of any Addl. Sessions Judge by the High Court with whatever nomenclature may be, will not authorize such Judge to try the cases without lifting the bar contained in section 193(2) of the Code by an order of Sessions Judge or Provincial Government as provided under section 193(2), of the Code. Thus, the provision of section 528(1A), of the Code will be applicable in respect of Additional Sessions Judge to whom the Sessions Judge made over the case and he framed the charge in the case, till he is posted in the Sessions Division. It is further pointed out that several Additional and Assistant Sessions Judges are posted in a Sessions Division, if one or two such Judges are transferred then another Judges are posted in their places who are successor-in-office of such Judges. Ordinarily powers and duties of an officer can be exercised by his successor-in-office as per section 18 of General Causes Act. However, the Code has handled the situation differently from the above general principle, as it has imposed some restrictions on the exercise of such powers: Section 559 of the Code deals with the above situation, which is reproduced: "Provision for powers of Judges and Magistrate being exercised by their successors in office.?(1) Subject to the other provisions of the Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office. (2) When there is any doubt as to who is the successor in office of any Magistrate. the Sessions Judge shall determine by order in writing the Magistrate who shall for the purposes of this Code or any proceedings or order thereunder, be deemed to be the successor-in-office of such Magistrate. (3) When there is any doubt as to who is the successor in office of any Additional or Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the Judge who shall, for the purposes of this Code or of any proceedings or order thereunder be deemed to be the successor-in-office of such Additional or Assistant Sessions Judge." From the above provision of law it is clear that the' successor of a Judge or Magistrate can exercise or perform the powers and duties of his predecessor on the fulfillment of certain conditions provided under the Code as the words "subject to the other provisions of the Code" are very significant and meaningful in the section 559 of the Code. Thus, the Code dealt with the situation differently from the law of general application. From the bare reading of the section 559, it is clear that no absolute powers have been given to the Judge who succeeds his predecessor to exercise the powers and perform the duties of his predecessor unhindered as the exercise of powers and performance of duties of successor-in-office are "subject to other provisions of the Code". (The opening words of section 559 of the Code). As already observed that the Code has placed a bar on the Additional Sessions Judge to try the cases directly unless the competent authority has made them over to him for trial therefore, when a successor occupies the office of his predecessor, the said bar will continue to operate against him unless removed by an order passed under section 193(2) of the Code, therefore, section 559 will be read subject to section' 193(2) of the Code. Thus, a Judge by virtue of his being Successor-in-office of his predecessor cannot exercise the powers of trial of cases, which was given to his predecessor, because it will be subject to section 193(2) of the Code under which an order is required to be passed allowing the successor Judge to try the cases. If we accept the proposition that in such a situation the, Sessions Judge has no power to make over the case after framing of the charge, then there will be great hardship to the accused and administration of justice will be standstill because, firstly, the cases will be unattained after the transfer of the Judge who started the trial; secondly, his successor will not be having powers to try such cases because of the bar contained in section 193(2) of the Code. Then in such a situation after transfer of every Judge, the High Court is to be moved to transfer the cases from one Judge to another. It will be a cumbersome procedure, which is not expected to be intended by the Parliament, which enacted the Code. Thus, the bar of recalling the case from the Additional Sessions Judge who tried the case as contained in section 528(1-A) will continue to operate until that Judge is posted. Once he is transferred, then his successor also requires an order under section 193(2) of the Code. After the transfer of a particular Judge, then there is no bar in the Code on the powers of the Sessions Judge to make over the case to any Additional Sessions Judge of his Division, because the case remains on the file of Sessions Court whose presiding officer is Sessions Judge himself as already observed. This point can be examined from another angle. As already observed that only the Sessions Court presided by the Sessions Judge is competent to try a Sessions case therefore, keeping in view the crime rate, it is not possible for a single Judge to cope up with the work, as such, the Provincial Government found it necessary to place more officers at the disposal of Sessions Judge by appointing them as Additional and Assistant Sessions Judges with powers to exercise jurisdiction in the Sessions Court to decide Sessions cases. The Sessions Judge is further authorized to distribute the business to other Additional and Assistant Sessions Judges by making over the cases to them under section 193, of the Code. Thus, it is the Sessions Judge, the Presiding Officer of the Sessions Court, that is required to try the cases, but for particular case or class of cases, he delegates his powers of trial of the cases to Additional and Assistant Sessions Judges. As such, the Sessions Judge becomes delegator and Additional and Assistant Sessions Judges become delegatee. (Not strictly in real sense). In such a situation, the delegator will remain in the control .of the cases, which he made over to his delegatee. But a bar has been created to exercise some of the powers of the delegator in respect of cases in which charge has been framed by the Additional Sessions Judge (delegatee). However, where the Additional Sessions Judge to whom such powers were delegated ceased to exercise jurisdiction in the Sessions Division, the Sessions Judge would then be in a position to exercise all powers. The bar contained in section 528(1-A), of the Code will be to the extent of the Additional Sessions Judge who had framed the charge in the case and still posted in that division. When the said Additional Sessions Judge is transferred the bar by itself will be removed. As regards the provisions of Section 350 of the Code. It will be advantageous to reproduce the same, which reads as under:-‑ "350. Conviction on evidence partly recorded by one Presiding Officer and partly by another.-(1) Whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself, or he may re-examine the witnesses and recommence the inquiry or trial: Provided that:-‑ (a) Where the conviction was held before a Sessions Judge, the High Court; and (b) Where the conviction was held before. a Magistrate, the High Court or the Court of Session, may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby and may order a new inquiry or trial. (2) Nothing in this section applies to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349. (3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of subsection (1)." It is clear that this section deals with the award of conviction on the evidence partly recorded by other Judge. It provides that if any Sessions Judge or Magistrate, after having heard and recorded the evidence in part or whole, in any enquiry or trial, ceases to exercise jurisdiction in the Court, then his succeeding Sessions Judge or Magistrate can act upon the evidence so recorded by his predecessor or partly recorded by himself and can order for re-trial by re-summoning the witnesses. In this provision, it will be noticed that there is no mention of Additional and Assistant Sessions Judges. Would it mean that Additional and Assistant Sessions Judges cannot act on the evidence recorded by their predecessors'? If we accept this proposition, then after substitution of section 350 of the Code by Ordinance VIII of 1980 all the convictions awarded by Additional and Assistant Sessions Judges acting oil the evidence recovered by their predecessors would be null and void. Previously, whenever a Sessions Case was part-heard by any Sessions Judge or Additional Sessions Judge, and he was transferred , then the Provincial Government used to issue Notification under section 9(3) or by appointing the said Judge, as the case may be as ex officio Additional Sessions Judge of that Sessions Division to try his part heard case. For the reason that it is general rule that the Judge who heard the evidence shall decide the case. The section 350 of the Code was amended by Ordinance VIII of 1980 by which the words "Sessions Judge" were inserted before the word "Magistrate" in subsection (1) and heading of the section was also changed. After the said amendment the Sessions Judges and Additional Sessions Judges are acting upon the evidence recorded by their predecessor Judges. It is pointed out that under section 6 of the Code there are only two Courts viz. Courts of Sessions and Courts of Magistrates. The said Courts are presided over by Sessions Judges and Magistrates. If the Sessions Judge or Magistrate is transferred or ceased to exercise jurisdiction, then another Sessions Judge or Magistrate is appointed to preside over the said Court. If the Sessions Judge or Magistrate is, transferred, then immediately another Sessions Judge .or Magistrate is appointed so as to preside over the said Court. When the Sessions Judge is, absent on account of casual leave or other cause, an incharge Judge is immediately appointed by the Sessions Judge [section 17(4)] so as to complete the constitution of Sessions Court. Therefore, section 350 of the Code mentions only the presiding officers of the Courts of Session and Magistrates. The Additional Sessions Judge having no independent Court has not been included in the section 350 of the Code. However, once the Sessions Court is complete by posting another Sessions Judge by the High Court, then he would be successor of the Sessions Judge. The cases are always pending on the file of Sessions Court whose Presiding Officer is Sessions Judge and not to Judge. It is the Sessions Court, where the Magistrate sends up the case [190(2)]. It is the Sessions Court, which is competent to try the cases (section 28). It is the Sessions Court, which is required to frame the charge (section 265-D). It is the Sessions Court, which is required to record the evidence (section 265-F). It is the Sessions Court, which is required to convict or acquit the accused (section 265-H). In sentencing accused persons, the Code gives power to the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges. According to section 31 of the Code, the Sessions Judge and Additional Sessions Judge may pass any sentence authorized by law but the sentence of death passed by said Judges is subject to the confirmation of High Court It authorizes the Assistant Sessions Judges to sentence an accused person authorized by law except the sentence of death or imprisonment for term exceeding seven years. Thus, according to scheme of Code, the conviction is to be recorded by Sessions Court but for sentencing an accused person different powers have been given to above named Judges. However, section 350, of the Code deals with the conviction, which can be awarded by the Sessions Court. After conviction, the officers/Judges have been authorized to pass sentence within the meaning of section 31 of the Code. Thus, when the Court of Session is vacant because of transfer or for any other reason, then a Judge is appointed in the said Court who would be successor of Sessions Judge within the meaning of section 350. The Additional Sessions Judges are appointed to exercise jurisdiction in the said Court. Thus the Sessions Court is complete after the posting of new Sessions Judge, therefore, the legislature did not find it necessary to include the words "Additional and Assistant Sessions Judges" in section 350 of the Code. The Sessions Court being the only Court in the Division includes Additional Sessions Judge and Assistant Sessions Judge who have been appointed to exercise the jurisdiction in the Sessions Court. As regards section 526,of the Code, it deals with the powers of High Court to transfer the cases from one Court to another Court. The relevant provisions are 526(1)(e)(ii), which are as under:-‑ "Section 526. High Court may transfer case or itself try it.-(1) Whenever it is made to appear to the High Court. (a) ???????????. (b) ???????????.?? (c) ???????????. (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) ???????????.?? (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) ???????????.?? (iv) ???????????. From the above provisions, it is clear that High Court has jurisdiction to transfer any particular case, appeal, class of cases or appeals, from a Criminal Court Subordinate to it to any ether such Criminal Court of equal or superior jurisdiction on the grounds mentioned in the section. Thus, a case can be transferred from one Court to another Court of equal or superior jurisdiction. Under the scheme of the Code there is only one Court in a Sessions Division, which is known as Court of Session presided over by the Sessions Judge. There is no other Court of Session in the Sessions Division. The Additional Sessions Judges are exercising jurisdiction in the said Court. There is no Court as "the Court of Additional Sessions Judge". The Section does not provide a case to be transferred within one and same Court but it requires that the case can be transferred from one Court to another Court. Thus, there should be two different Courts of equal or superior jurisdiction for the transfer of a case. Nevertheless, the section can be read as transfer from one officer to another officer within one and same Court, if several officers are exercising the jurisdiction in the same Court. Even otherwise, the High Court can withdraw a case from one Additional Sessions Judge and can send it to another Additional Sessions Judge or Sessions Judge or a case can be withdrawn from a Sessions Judge and can be sent to any Additional Sessions Judge within one Sessions Division under section 561-A, Cr.P.C. In the light of what has been stated above, I am of the following views:-‑ (i) There is one Court of Session in the Sessions Division, which is presided over by the Sessions Judge. (ii) There is no Court by the name of "The Court of Additional Sessions Judge". (iii) The Code does not recognize any nomenclature assigned to the Additional and Assistant Sessions Judge by the Provincial Government or Administration, except the designation of Additional Sessions Judge or Assistant Sessions Judge. (iv) The Additional and Assistant Judges are appointed to exercise jurisdiction in the Court of Session. For that, a notification is require to be issued. (v) After the cases are received by the Court of Session from the Magistrate under section 190(2), of the Code, they are pending on the file of Court of Session, presided over by the Sessions Judge, even after the same are made over to the Additional Sessions Judge under section 193(2), Cr.P.C. (vi) It is the Sessions Court, which is competent to try the case. (vii) The Additional Sessions Judge has no powers to try any case by virtue of his initial appointment, posting or transfer from one Sessions Division to another Sessions Division. (viii) The Additional Sessions Judge can try those cases only which are specifically directed or made over to him by the Provincial Government or Sessions Judge respectively through a general or special order after posting by initial appointment or. transfer in a Sessions Division. (ix) The Sessions Judge has no powers to recall a case or cases made over to a particular Additional Sessions Judge in which the said Additional Sessions Judge has started the trial i.e. framed the charge until such Additional Sessions Judge is transferred or ceased to exercise jurisdiction in the Sessions Court. (x) After transfer of the said Additional Sessions Judge or he ceased to exercise jurisdiction in the Sessions Court, the cases made over to him in which charge has been framed remain on the file of Sessions Court and Sessions Judge can try the cases himself or make them over to any other Additional Sessions Judge. The bar of section 528(1A), of the Code of re-call of the cases in which trial has commenced will not be applicable to such cases. (xi) The powers and duties of Additional Sessions Judge can be exercised and performed by his successor-in-office subject to section 193(2) of the Code. After considering the legal position very minutely, I am unable to agree with the view taken by my learned brother Rana Muhammad Arshad Khan, J., in the case of Muzammel, but I agree with the view expressed by my learned brother Sardar Muhammad, J., in the case of Mushtaque Ahmed. ***