1990 P Cr (PLP)

(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."

4. There can be only one Court of Session for every Sessions Division though it may be manned by several Judges. In Superintendent and Remembrance of Legal Affairs, Bengal v. ljjatulla Paikar reported in 32 Cr. L J (1931) at page 842, it was held: "Under S.9, Criminal Procedure Code, the Local Government is empowered to establish a Court of Session for every Sessions division and to appoint a Judge of such Court and Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in such Court, and to direct at what place or places the Court of Session shall sit. Thus, there is only one Court of Session in each Seasonal division, sitting at different places, and manned by a number of Judges. The Court is the Court of Session. It is not accurate to refer to the `Court of the Sessions Judge,' and the `Court of the Additional Sessions Judge and so on, except colloquially. Just as in the High Court, we do not refer to the constituent Courts as the Courts of any particular Judge, either `permanent' or `additional'."

5. Subsection (3) of section 17, Cr.P.C. further makes it clear that all Assistant Sessions Judges are subordinate to the Sessions Judge in whose Court they exercise jurisdiction. This question was examined in relation to a criminal revision under section 435, Cr.P.C. by a Division Bench of this Court in the case of Abdul Rahim v. Abdul Rauf and another reported in 1983 P Cr L.I 1390, and it was observed: "We are of the view that one of the main factors, which needs consideration in deciding questions of this nature is the venue of appeal. Normally, it can be said that the Court hearing an appeal against an order, or, judgment of another Court should be considered to be superior to that Court, and the concept of inferiority of Courts, as mentioned in section 435, Cr.P.C. can be decided on that rational. In the present case also an Assistant Sessions Judge has to depend on the distribution of work that has to be done by the Sessions Judge, and appeals against the judgments of the Assistant Sessions Judge also lie to the Court of Sessions. For these reasons, we are of the view that the Court of Assistant Sessions Judge, is inferior to the Court of a Sessions Judge, whether it be presided over by the Sessions Judge himself or, by an Additional Sessions Judge." In Askar Ali and others v The State reported in P L D 1959 SC (Pak.) 251, it was held: "An Assistant Sessions Judge belongs to a distinct category of judicial officers, from that constituted by Additional Sessions Judges."

7. The view taken by learned Additional Sessions Judge that there was only one Court of Session and the Assistant Sessions Judge was as much a part of the Court as the Sessions Judge and consequently the application for bail after its dismissal by the Assistant Sessions Judge was competent before this Court alone, can succeed only if for all purposes the Court is one and it is not possible to sub divide it into many Courts for any purpose. .

8. The above question in relation to a criminal revision was examined exhaustively by D.S. Mathur J. in the case of Municipal Board Bijnor v. Bhim Singh reported in A I R 1962 All. 450, and it was observed: "in the case of a Court of Session, all the Judges do not have the same powers. The powers of Assistant Sessions Judges are less. Under section 408, Cr.P.C. a person convicted on a trial held by an Assistant Sessions Judge can appeal to the Court of Session. Consequently, Section 408, Cr.P.C. by itself provides that there is a Court presided over by an Assistant Sessions Judge, which for purposes of appeal is distinct from the Court of the Sessions Judge to whom the order passed by the former is appealable. Under the proviso to the section the appeal shall lie to the High Court if the sentence of imprisonment awarded exceeds four years. This will also suggest that the Court of Session is for certain purposes divisible into many Courts, one presided over by the Sessions Judge or Additional Sessions Judge and another by Assistant Sessions Judge. When a Court of Session constituted for the Sessions division can be sub divided, we can easily hold that for purposes of section 435, Cr PC. the Court of the Assistant Sessions Judge is distinct from the Court of the Sessions Judge. To make this point more clear it may further be observed that the framers of the Cr.P.C. have made a differentiation between a Court of Session and the Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. Wherever a provision is made for the commitment of a case or for filing an appeal or revision it is laid dawn that the commitment shall be made to or the appeal or revision shall be filed before the Court of Sessions; but wherever a provision is made for the hearing of the case by the Judges of the three categories, they have been referred to as the Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. In other words, therefore, though, legally speaking, there is only one Court of Session, there are, for purposes of administration of justice, as many Courts as there are Sessions Judges in the district. One Court shall be presided over by ‑the Sessions Judge, others.by Additional Sessions Judges and the rest by Assistant Sessions Judges. Thus, for purposes of section 435, Cr.P.C. the Court of an Assistant Sessions Judge shall be distinct from that of the sessions Judge."

9. From the above analysis, it is obvious that Assistant Sessions Judge belongs to a different category of judicial officers who under subsection (3) of section 31, Cr.P.C. is empowered to pass any sentence for a term not exceeding R seven years. Reading sections 30 and 34, Cr.P.C. together with the above provision of law, it is apparent that for all practical purposes the Assistant Sessions Judge exercises the same powers which are vested in a Section 30 Magistrate.

10. A bare reading of section 497, Cr.P.C. would show that the Legislature has used the word `Court' in relation to the exercise of discretion for the grant of bail. The word `Court' signifies not only the place where justice is administered but also of the persons who exercise judicial functions. It, therefore, follows that where the Assistant Sessions Judge exercises powers under section 497, Cr.P.C., he does not act as a Sessions Judge but he acts as a Court of original jurisdiction f. subordinate to the Sessions Judge. The construction that I have placed on the language of subsections (1) to (4) of section 497, Cr.P.C. becomes more clear if subsection (5) is read alongwith other subsections, which provides: "A High Court or Court of Session and in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."

11. It also seems to me that the interpretation about the status of Assistant Sessions Judge, that I have placed on the respective provisions of law saves all anomalies and inconsistencies which on different interpretation are bound to arise.

12. It will be manifestly clear that for the purpose of the exercise of power, under section 497, Cr.P.C. the following rungs of ladder of the machinery of the Courts are provided: (i) Courts of Magistrates and the Assistant Sessions Judge; (ii) Courts of Sessions Judge including, the Additional Sessions Judge; and (iii) High Court. All these Courts exercise concurrent powers under section 497, Cr.P.C. and ordinarily the superior Court should not entertain the application for bail without the inferior Court first moved. However, the powers under subsection (5) cal section 497, Cr.P.C. can only be exercised by a High Court or a Court of sessions, except where the accused is released by itself, by any other Court viz., the trial Court,

13. Reading section 497, Cr.P.C. with section 498, Cr. P.C. it is apparent that the power to grant pre‑arrest bail was restricted to only Court of Sessions and High Court. The Legislature has refrained from using the word `Court' in section 498, Cr. P C. The Assistant Sessions Judge is, therefore, not competent to entertain and decide an application for pre‑arrest bail.

14. To sum up, an Assistant Sessions Judge for the purpose of section 497, Cr.P.C. is an inferior Court like any other Criminal Court of a Magistrate and the Sessions Judge will entertain and decide a bail application after the same is dismissed by an Assistant Sessions Judge. 15. .On merits the applicant has got a good case. Admittedly the powder of heroin weighing about 25 grams was not recovered from the possession of applicant. There is nothing on record to show that the motor‑cycle where the powder of heroin was found actually belonged to applicant. Faced with this situation, the learned AA.‑G. has raised no objection to the grant of the prayer of applicant, who is allowed bail in the sum of Rs.25,OtX) (Rs. Twenty‑five thousand) only with P.R. in the like amount to the satisfaction of IVth Assistant Sessions Judge (East) Karachi. S.A./P‑129/K Bail granted.