2021 PLP 2077 (MLD)

ALI ZIA BAJWA, J.

Petitioner has filed this transfer application under section 526 of the Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C") seeking transfer of his application filed under section 22-A(6) of Cr.P.C. with the office of ex-officio Justice of Peace, Lahore (hereinafter 'JOP'). Although, today petitioner has requested for withdrawal of this petition having become infructuous as criminal case has been registered as a result of direction issued by learned Ex-officio Justice of the Peace but as it is a case of first impression and for the clarity of law qua the transfer of application filed under section 22-A(6) Cr.P.C., I would like to decide whether application under section 22-A, Cr.P.C. can be transferred under section 526, Cr.P.C.

2. Learned counsel Mian Ali Haider appointed as amicus curiae by this Court submits that for deciding the maintainability of this petition, the pivotal point is the understanding of the concept of 'Court' and for that it is imperative to see Articles 175(1) and (2) of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution') which reads as under; 175. (1) There shall be a Supreme Court of Pakistan, a High Court for each Province 1[and a High Court for the Islamabad Capital Territory] and such other courts as may be established by law. (2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. (Emphasis Supplied)

3. As it is evident from the Article supra that the term "Court" provided under this Article includes august Supreme Court of Pakistan, High Courts of the Provinces, a High Court for the Islamabad Capital Territory and such other courts as may be established by law. Constitution makers in their wisdom considered it necessary to expressly authorize the legislature by Article 175 of the Constitution to set up the courts as per the requirement. Similar provisions have been provided under Constitutions of other countries like India, Australia, United States of America and Canada. So it is clear that all the courts are the creatures of the Constitution or the law and drive their powers and jurisdiction from the Constitution or any law, under which they are constituted. Section 6 of Cr.P.C. provides a list of criminal courts and JOP falls nowhere in that list. Justice Fazal Karim in his remarkable book titled as "Access to Justice in Pakistan" had commented that there are many tribunals or bodies with the label 'court' attached to them which have many of the trappings of a court or which are required to act judicially, yet they are not courts of judicature or courts of law within the meaning of Article 175 of the Constitution. At the end, learned amicus curiae has contended that office of JOP cannot be termed as a court, hence application under section 526, Cr.P.C. is not maintainable.

4. Heard and record perused.

5. To decide the maintainability of such application under section 526, Cr.P.C., it will be advantageous to have a glimpse of section 526, Cr.P.C. which is provided infra:

526. High Court may transfer case or itself try it: (1) Whenever it is made to appear to the High Court- that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or that Some question of law of unusual difficulty is likely to arise, or that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into a trial of the same, or that an order under this section will tend to the general convenience of the parties or witnesses, or that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order 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; 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; that any particular case or appeal be transferred to and tried before itself; or that an accused person be sent for trial to itself or to a Court of Session. 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 on 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 the application, together with a copy of 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. (6-A) Where 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. (7) Nothing in this section shall be deemed to affect any order made under Section 197. (8) Adjournment on application under this section : If in any inquiry under Chapter VIII or any trial, the fact that any party intimates to the Court at any stage that he intends to make an application under this section shall not require the Court to adjourn the case, but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court and, if the application is accepted by the High Court, the proceedings taken by the Court subsequent to the intimation made to it shall, at the option of the accused be held afresh. (9) If, before the argument (if any), for the admission of an appeal begins, or, in the case of an appeal admitted, before the argument for the appellant begins, any party interested intimates to the Court that he intends to make an application under this section, the Court, shall, upon such party executing, if so required, a bond without sureties of an amount not exceeding five hundred rupees that he will make such application within a reasonable time to be fixed by the Court, postpone the appeal of such a period as will afford sufficient time for application to be made and an order to be obtained thereon.

6. Minute scrutiny of this provision envisages that three terms i.e. "criminal court", "inquiry" or "trial" have been used in this section and are important to decide the scope of this section. These are pre-conditions to exercise the jurisdiction under this section. First and most important pre-condition to decide the maintainability of petitions like one in hand is that transferred sought for should be from a criminal court subordinate to the High Court. So, Court has to see whether office of JOP does fall within the definition of court or not. Appointment of JOP is governed by section 22, Cr.P.C., which provides that the Provincial Government may, by notification in the Official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it, any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied to be a justice of the peace for a local area to be specified in the notification. Section 25 Cr.P.C. provides that by virtue of their respective offices, the Sessions Judges and on nomination by them Additional Sessions Judges are Justices of Peace within and for the whole of the district of the province in which they are serving. So, all the Sessions Judges and on their nomination, Additional Sessions Judges are ex-officio Justices of Peace and their powers are provided under sub-section 6 of section 22-A, Cr.P.C. Classes of criminal courts are provided under section 6, Cr.P.C. It will be advantageous to have a bird eye view of this section which is provided infra:

6. Classes of Criminal Courts and Magistrates: (1) Besides the High Courts 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 Magistrate. (2) There shall be the following classes of Magistrate, namely:- (i) Magistrate of the First Class; (ii) Magistrate of the Second Class; and (iii) Magistrate of the Third Class,

7. Section 6, Cr.P.C. clearly envisages that under this section, besides this Court, there are two classes of Criminal Courts i.e. Courts of Sessions and Courts of Magistrates and office of JOP nowhere falls within the ambit of definition of a criminal court. It is also pertinent to mention that under Part-II, Chapter-II of Cr.P.C., classes of criminal courts are provided under Chapter-A while office of JOP is established under Chapter-E of said Chapter and this placement of JOP in another chapter itself suggests that legislature has not intended to include office of JOP in the classes of criminal courts.

8. Furthermore, it is also established and fortified by august Supreme Court in Younas Abbas and others case1 that while performing functions as ex-officio Justice of Peace, Sessions Judges and Additional Sessions Judges perform quasi-judicial functions. Hence, while working so, they cannot be termed as a 'court'. In light of this discussion, it is held that ex-officio Justice of Peace while performing its functions under section 22-A(6), Cr.P.C. is not a criminal court and this pre-condition to exercise the jurisdiction under section 526, Cr.P.C. is not fulfilled. As section 526, Cr.P.C. only deals with the transfer of a proceedings before a criminal court, hence provisions of section 526, Cr.P.C. cannot be adhered to for transferring a proceedings under section 22-A(6), Cr.P.C. pending before a JOP and this petition in the form of transfer application under section 526, Cr.P.C. is not maintainable.

9. Now next point for consideration of this Court is that if an application filed under section 22-A(6), Cr.P.C. cannot be transferred under section 526, Cr.P.C., then whether an aggrieved person shall be left remediless? Answer without slightest hesitation is in negative. It is cardinal principle of law that "Ubi Jus Ibi Remedium" i.e. where there is a wrong, there is a remedy. The principle provides that where one's right is invaded or infringed, the law provides a remedy to protect it. Chief Justice Marshal in Marbury v. Madison reported at 5 U.S. 137 had opined that: "it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld must have a remedy, and every injury its proper redress".

10. Under Articles 4 and 10-A of the Constitution every person has a right to be dealt in accordance with the law and have a fair trial. A person who is aggrieved by some unwarranted act, always has a remedy available under Article 199 of the Constitution, if there is no other remedy provided in any other law, by the virtue of above stated maxim i.e. Ubi Jus Ibi Remedium. This principle has always been considered as one of the fundamental principles of law and natural justice. In our country, the jurisprudence qua this maxim is well settled through plethora of judgments2 rendered by Constitutional Courts and it needs no further authority that when there is no other remedy available to an aggrieved person, he can approach this Court under Article 199 of the Constitution.

11. With these observations, instant petition for transfer of application filed under section 22-A(6) Cr.P.C is dismissed as withdrawn. SA/U-7/L Application dismissed.