P L D 1967 Lahore 190 (PLP)

Ijaz Hussain Batalvi and Raza Hussain Shamsi for Res pondent. Date of hearing: 18th October 1966. , By an application under sections 439/561‑A and 526 of the Criminal Procedure Code read with clause 17 of the Letters Patent of this Court, Mirza Muhammad Abbas sought the transfer of four cases investigated into by the Anti‑Corruption Establish ment West Pakistan, Lahore, which were entrusted to the District and Sessions Judge, Gujranwala at Gujrat, in his capacity as ex officio Senior Special Judge, Gujrat, by a notification of the Provincial Government. In the endorsement of the notification to the Inspector‑General of Police, it was requested, as suggested by the Director Anti‑Corruption Establishment, that the cases might be transferred for trial to the District Magistrate, Gujrat, who was ex officio Special Judge for Gujrat. The transfer of the cases was sought on various grounds alleging bias against him on the part of certain high officers of the Provincial Government, which had led to entrusting of cases against him to the Special Judge, Gujrat. The learned Advocate‑General and the Additional Advocate‑General; who appeared on behalf of the State had no objection to the transfer of the cases to the original side of the High Court from the Court of Mr. Humayun Khan, Special Judge, Gujrat and fixed for hearing before him on the 24th of June 1965. The learned Chief Justice before whom Criminal Misc. No. 1527 of 1965 came up for decision ordered on 23rd June 1965 that the cases be transferred to the original side of this Court, and be decided by me.

2. On 16th July 1965, the present applications (Criminal Misc. No. 1923/65 etc.) were instituted by the Public Prosecutor, West Pakistan under sections 526 and 561‑A of the Criminal Procedure Code praying for the transfer of the cases to the Court of the Special Judge on the ground that a Judge of this Court is not competent to hear the cases, not being a Special Judge notified by the appropriate Government. Notice of these petitions having been issued to Mirza Muhammad Abbas, the cases have been argued at length before me by the learned Advocate‑General for the State and by Mr. Ijaz Hussain Batalvi on behalf of the respondent.

3. The learned Advocate‑General has mainly contended that I have no‑ jurisdiction to hear these cases, not being a Special as section 5 (1) of the Pakistan Criminal Law Amendment Act, 1958, enacts that notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, the offences specified in the Schedule shall be tried exclusively by a Special Judge, and these cases should, therefore, be transferred to a Special Judge competent to dispose them off. It has further been argued that the order of the learned Chief Justice dated 23rd June 1965, not being a judgment in the eye of law, there is no bar to my making an order of transfer of the cases to a Special Judge, and reliance is placed on Munir Hussain v. The Crown (1) and Chhute Lal v. Tinke Lal and another (2) Kaikaus J. held in, the first cited case that though section 369 Criminal Procedure Code, which prevents alteration of a judgment by the trial Court, had no application to an order of transfer made by the High Court, nevertheless the principle of finality of orders had to be kept in view, but that an order of transfer was in the nature of interlocutory orders and the principle of finality was not attracted to it. It appears to me that it is not necessary for me to go into this question, because if I have no jurisdiction to bear and decide these cases, then the cases must be transferred to a Court of competent jurisdiction for trial and disposal.

4. To meet the contentions raised by the learned Advocate- General, the learned counsel for the respondent has mainly relied on the generality of the powers of this Court under section 526 of the Criminal Procedure Code, and contended that this Court has power to transfer any case pending before a Court subordi nate to it for trial in accordance with the procedure of that Court. He has also referred me to the preamble and provisions of the Pakistan Criminal Law Amendment Act and contended that the intention is not to deprive this Court of jurisdiction to decide such cases in exercise of powers on the original side of this Court, as is conferred by clause 17 of the Letters Patent, the Court also having power to transfer cases under clause 22 of the Letters Patent of this Court. Since this Court is competent to hear appeals from the orders of a Special Judge, who is, therefore, a Court subordinate to this Court, it is contended that this Court can dispose of a case of‑ an offence mentioned in the Schedule, just as it can take additional evidence, where it is seized of an appeal, from a conviction recorded by a Special Judge. 5. `Special Judge' means in clause (c) of section 2 of the Pakistan Criminal Law Amendment Act, 1958, a Special Judge appointed under subsection (P L D 1956 Lah. 505) of section 3, which enacts that the appropriate Government shall by a notification in the official Gazette appoint as many Special Judges as may be necessary to try and punish offences specified in the Schedule. Its subsection (A I R 1935 All. 815) I provide for the qualification of Special Judges, and section 4 territorial limits of their jurisdiction. When section 5 (1) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by Special Judges, the intention obviously is to exclude all others from trying offences specified in the Schedule. The persons notified under section 3 are persona designata for the purpose of trial of such offences and no other person is competent to hold a trial of offences specified in the Schedule. The notification of the Provincial Government appoints certain Magistrate and Sessions Judges as Special Judges, and as the High Court Judges are not notified as Special Judges, they are not, competent to try offences mentioned in the Schedule.

6. Section 526 (2), Cr. P. C. enables this Court to withdraw for trial any case from any Court, and this action may be taken by this Court either on the application of any party or the report of a Court or of its own initiative under its subsection (3), but section 5(1) of the Pakistan Criminal Law Amendment Act is a provision enacted to operate "notwithstanding anything contained in the Code of Criminal Procedure, 1898". A further provision in subsection (3) of section 10 of this Act is that the highest Court having appellate jurisdiction shall have the authority to transfer any case from the Court of a Special Judge to the Court of any other Special Judge. This provision is, in my view, a special provision, which over‑rides the general provision in section 526 of the Criminal Procedure Code. The combined effect of section 5 (1) and subsection (3) of section 10 of the Pakistan Criminal Law Amendment Act, 1958 is to confer exclusive jurisdiction on the Special Judges to try offences mentioned in the Schedule, and since the Judges of this Court are not notified as Special Judges, they have no power to try such offences on the original side, notwithstanding that there is power in this Court as appellate Court tp record additional evidence in appeal in exercise of power under section 428 Cr. P. C. read with section 6 (1) of the Pakistan Criminal Law Amendment Act.

7. For the above reasons I hold that I have no jurisdiction to hear these cases and that it is necessary in consequence to transfer the cases for trial to a competent Special Judge.

8. The question now is as to the person to whom these cases should be entrusted for trial as a Special Judge. In view of the allegations made by the respondent against senior officers it is necessary that the trial should be conducted by a Senior Special Judge and Sheikh Noor Muhammad is a Senior Sessions Judge, who is qualified to be a Special Judge. He is now posted' at Montgomery, 1, therefore, order that these cases be personally tried and expeditiously disposed of by him, since the respondent is under suspension for a considerable time. The prosecution will arrange to place the challans in his Court within a week, and the cases shall proceed, as far as possible, from day to day for examination of the witnesses, whose attendance is procured. K.B.A Order accordingly.