P L D 2002 Azad J&K 20 (PLP)

'Control,: Verb. To check, restrain, govern, have under command and authority, Wolffe v. Loeb 98 Ala 426, 432 Noun: A position of authority indirection and management. 'Supervise'. To exercise oversight. To keep.under inspection. See ' 'superintendence' . 'Superintendence': Oversight, inspection, supervision. Moffitt v. Asheville, 103 NC 237, 9 $E

695. Care and oversight for the purpose of direction, and with authority to direct. The act of superintending. 'The word seems properly to imply the exercise of some, authority or control over the person or thing subjected to oversight.' Dantzler v. De Bardeleben Coal & Iron Co. 101 Ala 309, 14 So

10. BLACK'S LAW DICTIONARY: 'Control': v. To exercise restraining or directing influence over: To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern. 'Control': n. power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The 'control' involved in determining whether 'principal and agent relationship' or 'master and servant relationship' is involved must be accompanied by power or right to order or direct Mid‑Cantinent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N. E. 2 d 972:." 'Supervise'.To have general oversight over,, to superintend or to inspect. See Supervisor. 'Supervisor': A surveyor or overseer, Also in some state, the chief officer of a town; one of a board. of country officers. 1n a broad sense, one having authority over others, to sup printed and direct. The term 'supervisor' means any individual having authority, the interest of the employer, to hire, transfer, suspend, lay off, r all, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them., or to adjust their grievances, or effectively to recommend such action, if in connection with foregoing the exercise, of such authority is not of a merely rotuti or clerical nature, but requires the use of independent judgment. National Labour Relations Act, section 2(1 I ). " I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution. " In the aforesaid report, it has been clearly laid down that Article 203 regarding the administrative and supervisory jurisdiction of the High Court pertains to administrative aspect than the judicial aspect. It is also to. be noted that section 46(1) of the Interim Constitution Act, Article 203 of the Constitution of Pakistan 1973 and Article 102 of the Constitution of Pakistan, 1962, are analogous. The supervisory powers of the High Court under section 46 (1) are unlimited but at the same time, these have not been conferred upon it for converting it into the Court of appeal or revision. These powers are to be exercised in very rare and exceptional cases. The superintending power of the High Court under the aforesaid provisions is administrative as well as judicial in nature: The object of these powers was not to provide relief to any party. These powers have nothing to do with the grievance of a party. Under e these powers the High Court has to keep the eyes on all the Courts below, so that they may not fail to perform their own duties apart from the problems and interest of the parties. Such duties are to attend the Court regularly, punctually, to hear and decide the cases which falls within the iurisdiction and not to hear the cases which are beyond its jurisdiction to obey the legitimate directions of the superior Authorities to know la and conduct themselves like iudicial officers. This view finds support fr m PLD 1987 Karachi

652. It is pertinent to note that the words "supervise" and "control" in the aforesaid provision of laW, also confer powers upon the High Court to` exercise the judicial contr1 over the decisions of the subordinate Courts, with regar to correction of jurisdiction or non‑compliance of any statutory provision of law; but it does riot allow interference on merits. The High Courts could not convert itself into the Court of appeal or revision, while exercising the powers under section 46(1) of the Interim Constitution Act, 1974. ifie High Court while exercising the powers of supervision, can direct the ordinate Courts to act in certain way justified by law: It includes the powe s to take disciplinary actlions. A party cannot invoke section 46(1) for obtaining ning a certain relief. Neithler it is meant for such purpose; nor the Court is r quired by it to provide relief to any‑party. Section 44 is provided in the Int rim Constitution for obtaining the relief and the powers of appeal and re ision have been provided under the Cr.P.C. and C.P.C: This'view finds sport from PLD 1970 PeshaVatr 169 (174) which reads as under:‑‑ "A comparison of the atJove provisions will show that Article 102 is not meant to be invoke 1 by aparty, nor is the Court required by it, to provide relief to anybody. As against this,. Article 98 of the Constitution is meant to, provide relief to aggrieved parties. Section 151, C.P.C. is ~tntended to prevent abuse of the process of Court as well as to empd)wer the Court to make such orders as may be necessary for the end, of justice. Article 102 of the Constitution on the, contrary merely empowers the, High Courts to superyise and control all Courts subordinate to.it. The power is meant to enable the High Court to discharge its duties as a superior Court towards fair and proper administration of justice. The High Court has the authority to check and prevent dereliction of duty. and to stop as well as correct violations of law. As observed in Emperor v., Taralpore (AIR 1940 Sindh 230) 'superintendence' includes the power to guide, advise and encourage Judges of the subordinate Courts, According to the Allahabad High Court 'superintendence' includes the power to direct subordinate Courts and Tribunals to carry out.its order. vide Sant Lal Mahadeo Prasad v. Kedar Nath (AIR 1935 All. 519).. According to their Lordships of the Privy Council this includes the authority to direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice. See Rajkumar v. Ramsundar .,(AIR 1932 PC 69). The observations made in, certain judicial pronouncements, while discussing the scope of section 107 of the Government of India Act, 1915,, and Article 227 of the Indian Constitution which provisions are in many ways to the‑same effect as the provisions of Article 102 of Constitution of 1962, indicate. that the purpose of these provisions is not to convert the High Courts into Courts of appeal or of revision. " It would also not be out of place to mention here that section 46 (1) empowers the High Court to supervise and control the Courts subordinate to it in order to guide, cheek and encourage them. The orders and judgments of the lower Courts cannot be interfered with respect to the merits of the cases. Powers of appeal or revision are creatio of lav, Where such terms have not been created bylaw, then these sllouldnotbe exercised in order to provide the relief to the party by way of invoking the powers of superintendence and control, provided in section 46 (1) of the Interim Constitution Act, 1974.. This view finds support from PLD 1972 Karachi, 165 (172) which reads as under:‑‑ "A glance at it would show that the Article mentions no relief which may be given to a party under it. It does not even refer to any proceedings, order, judgment, relief or remedy. They are all outside the ambit of the provision except of course. to the extent that the conduct of the Courts themselves may be involved in them. It merely confers on the High Court the. power of supervision and control over its subordinate Courts. This power has nothing to do with grievances of parties or with doing justice to them. The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so‑ that they may not fail to do their own duties apart from the problems and interests of the parties. Such duties are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to" hear and decide those which may be outside their jurisdiction; to obey legitimate directions of their superior Authorities, to know the law and to conduct themselves like judicial .officers. Their judicial orders and judgments are subject to scrutiny, Qn appeal or revision, in accordance with the provisions that confer those jurisdictions on Courts of various grades. Every appeal and every revision does not lie to the High Court, nor is the power to hear appeals and revisions inherent in Courts This power is a creation of law; therefore, they do not exist,unless conferred by law. Thus, where these powers have not been conferred by law they cannot be exercised and should not be, exercised in order to give relief to an aggrieved party by way of supervision and control of subordinate Courts. " Now, the question emerges whether ‑ the relief claimed by the applicant (Ehtesab Bureau) in the present application, can be allowed under section 46 (1) of the Interim Constitution Act? This provision did not. provide any relief which could be allowed under it to a party. Under this provision, the powers of control and supervision were given to the High E Court for keeping the administration of justice clean and pure. It is not meant for the help of any party. This view finds support form PLD 1987 Karachi 652 (660) which reads as under:‑‑ (i) That Article 203 of the Constitution does not provide any relief, which could be granted under it. (ii) That under this Article, a High Court is given powers of supervision and control for making and keeping the administration of justice clean and pure. (iii) That it is not meant to help any, particular party. The duty under it can be performed irrespective of whether anybody will be harmed or not and whether anybody will be benefited by it or not. (iv) A relief of transfer of case from one Family Court to another Court on the application of a party cannot be granted under it for the reasons of convenience of the parties or anyone of them. It is, to be noted that the High Court under section 46 (1) shall not convert itself into the Court of appeal or revision. This view finds support from PLD 1971 Lahore 878 which reads as under:‑‑ "The power of judicial control under Article 102 is to be used more sparingly and in appropriate cases in order to keep the subordinate Courts within the bounds of their authority gnd not for correcting mere errors. Put differently; under Article 102 of the Constitution, this Court is not to convert itself into a Court of appeal and revision and the power of interference is limited to seeing that the subordinate Court functions within the limits of its authority." It also further finds support from PLD 1976 Karachi page

68. It would not be out of place to mention here that while granting the remand, the judicial officer has to weigh the evidence, to decide whether the accused should be detained or not. He should not grant the remand in mechanical manner. It is imperative for him to apply his mind. There should be reasonable cause for the remand. If the Magistrate finds that there are no reasonable grounds then he should not grant the remand. This view finds support from PLD 1979 Lahore 587 and PLD 1969 Lahore 1020. The Magistrate has to scrutinize the act of police and ensure that there is a substance in it or not. He has to consider the evidence collected by the police and ensure that it justifies the detention of the accused, because the right of liberty is most precious right of a citizen. The. detention of a person withoui any legal justification is engender of injustice. It shall create a sense or injustice and insecurity in the society and the mischief which could not be imagined. It is pertinent to note that if the police fails to satisfy the Magistrate about the accusation attributed to the accused, then he has no jurisdiction to grant the remand and he may discharge the accused. This view finds support from AIR 1964 Monipur 39 (45) which reads as under:

"There is an impression among the Police in this Union Territory that the remand of an arrested person should be done by the Magistrate is a matter of course. The sooner this impression is got rid of, the better it will be. I wish to impress on all the Magistrates as well as on the Policg that it is the duty of the Police to comply with the provisions of section 167(1), Cr.P.C. and that the Magistrate should insist on such strict compliance and if the Police do not a remand was necessary, for the purpose of investigation, the Magistrate may release the accused.". This view further finds support from AIR 1963 Monipur 12 which reads as under:‑‑ "When dealing with section 167; Cr. P.C. the Magistrate cannot look to the convenience of the Police to submit remand reports. The Court is dealing with the liberty of a citizen which is.guaranteed under the Constitution and it has to act according to the strict letter of the Law. If the Police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that investigation could not be completed within 24 hours and that there are grounds for believing that the accusation or information is well founded, the Magistrate has no jurisdiction to direct the detention of the, arrested person. ,It is a travesty of justice to order detention in anticipation of a remand report. It is seen in this case, that on many occasions no Police Officer was present and no remand report received and still the Magistrate went on ordering further remands of the arrested persons. (14) 1 am not able to understand what the District Magistrate meant by link Magistrates in his Order No.5(J)‑DM/61 dated Imphal, the 29th July, 1961. There is no provision for appointment of link Magistrates under the Criminal Procedure Code. It can at best only mean that one Magistrate has been given concurrent jurisdiction alongwith another Magistrate who may not be readily available. Even the so‑called link Magistrate has to act under section 167, Cr.P.C. and abide by the strict provisions of the said section. (15) There is no, doubt in my mind that the detention. of the petitioner and the other two arrested persons in this case was totally against law, and they have to be directed to be released from jail. I have already ordered their release pending final orders in his application and the said release order is hereby made absolute." It is to be noted that under section 167(3) of the Cr.P.C., thel Magistrate has to record the reasons while granting the remand. It is the fundamental duty of the Magistrate to furnish reasons for allowing the same. LH The order of remand must contain the reasons. The basic object of, section 167(3) is that the Magistrate should not record the order of remand in' mechanical manner without, examining the record and reasons. While authorizing the detention, it is essential for him to study the material placed on file, because the law is jealous regarding the liberty of the citizens and never allows the detention until and unless there is legal sanction for it. This view finds support from AIR 1931 Lahore

476. As stated above, Magistrate, while granting the Police remand, has to record the reasons, scrutinize and examine the record. If after considering the record and material produced by the police and merits of the case, he was not satisfied and did not grant the remand, then his order shall not be interfered by this Court, while invoking the powers under section 46(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. As stated above, that this provision empowers the Court to supervise and control the subordinate Courts in order to guide, check and encourage them. The order and judgments of the lower Courts could not be, interfered, with respect to the merits of the cases under this provision of law. In the instant case, the orders of the lower Court can only be interfered, after considering the merits of the material placed before the learned Judge Ehtesab Court, which is not the function of this Court, while considering the application under section 46(l) of the Interim Constitution Act, 1974. Such powers 'can only be exercised by this Court in an appeal or revision. While considering an application under section 46(1) this Court shall not exercise the powers of the appellate or revisional jurisdiction and it should not convert itself into a Court of appeal or revision. Before parting with the case, I would like to deal with the case‑law referred by the learned counsel for the parties. The case‑law referred by the learned counsel for the applicant; 1999 MLD 1847 = PLJ 1998 Lah. 1683, and case‑law referred by the learned counsel for the non‑applicant 1985 PCr.LJ p.97, 1994 PCr.LJ p.1806 and 2001 PCr.LJ p.160 are concerned. These pertain to the writ jurisdiction. There is no resemblance among the writ jurisdiction and the jurisdiction of superintendence and control. There is lot of difference between both the jurisdictions, as discussed in the earlier part of the judgment, thus. the case‑law referred by the learned counsel for the parties have no relevancy with the present case. The epitome of the above discussion is, that this application is not maintainable. It has no force. It is hereby dismissed. Order accounced. H.B.T./29/AJ&K Application dismissed.