P L D 1977 Supreme Court I (PLP)

MUHAMMAD GUL, J.

Pursuant tab an order by the learned Chief Justice of the High Court of the Sind & Baluchistan dated the 23rd September 1976 in Criminal Revision No 99 of 1976, the petitioner has moved this, what purports to be a petition under Article 9 of the High Courts (Establishment) Order , 1970 (P. O- R of 1970), for the transfer of the said "revision from that High Curt to another High Court. The Revision itself arose in the circumstance set out below. The first two respondents namely Tariq Saeed and Zia Abbas are among eight accused in a case under section 148/302/307/149, P. P. C. pending for trial in the Court of the 6th Additional Sessions Judge, Karachi. The case arose out of an incident on 6-9-1974 at about 1-30 p.m. in front of Qadri Hotel, Jackson Road, Karachi, in the course of which three persons received fire-arm injuries. Of the three injured, two died, one at the spot and the other in the Hospital the same evening. F. I. R. was lodged within the 15 minutes of the incident by Bakhtiar Khan. The petitioner herein is brother of the two deceased and a prosecution witness in the case. Of the eight accused, five including the two respondents were enlarged on bail on different dates 13y a learned Additional Sessions Judge and the High Curt !-as refund to cancel the bail by different orders one of which is under challenge in this Court in 1'. S. L. A. No. 14 of 1976. In the meantime the State moved the learned trial Judge under section 494, Cr. P. C. for leave to withdraw from the prosecution against the above-named two respondents. The learned ,trial Judge ride order dated 27-7-1976, refused permission for the withdrawal of the case against the two respondents against which they moved the aforesaid Revision in the High Court. The petitioner though not made a party to the Revision was permitted to participate in the proceedings, apparently .because he was brother of the two deceased. While the matter was being considered by the High Court, on his request, the case was adjourned to enable him to apply to this Court for the transfer of the case to another High Court. Hence this petition. The petitioner appeared in person and stated his case. It is however. unnecessary to refer to the grounds on which he seeks the transfer of the Revision because under the Constitution or any other law, this Court has A no jurisdiction to transfer a case pending in one High Court to another High Court. Article 175(2) of the Constitution precludes the existence of any such jurisdiction aliunde. The petition as pointed out in the beginning purports to be under Article 9 of P. O. 8 of 1970. It reads : "On the application of any of the parties, and after giving notice to the parties and hearing such of them as desire to be heard, or of its own motion without such notice, the Supreme Court may at any stage transfer for disposal any proceeding pending before a new High Court to another new High Court." The expression "new High Court" has been defined in Article 2(2) ibid, as follows : "New High Court" means a High Court established by this Order". The Order, as is clear from its preamble is a sequel to the West Pakistan (Dissolution) Order, 1970 (P. O. 1 of 1970) on the commencement of which the Province of West Pakistan and the late High C our t of West Pakistan ceased to exist. Clause (1) of Article 14 ibid, also provided for the establishment of a High Court for each new Province to be established under that Order or al common High Court for two or more of such Provinces on certain conditions stated therein. Consequently by Article 3 of the High Courts (Establishment) Order, the Peshawar High Court, the Lahore High Court and the Sind & Baluchistan High Court each compendiously described as "new High Court") were established in place of the late High Court of West Pakistan. It is also noteworthy that article 14 of P. O. 1 of 1970, by clauses (3) to (8) made elaborate previous, for the transfer of cases then pending in the High Court of West Pakistan to the successor High Courts. It was is that context that Article, 9 of f'. O. 8 of 1970 was inserted a transitional residuary provision to provide against any possible hiatus notwithstanding the provision made in Article 14 of P. O. 1 of 1970 concerning the transfer of cases. It is precisely for this reason that Article 9 of P. O. 8 of 197 even went so far as to empower this Court to: transfer "of its own motion) without notice" a case "pending before a new High Court to another new High Court". Then the expression "new High Court" in P. O. 8 of 1970 is not without significance. It specifically refers to a High Court established under P. O. 8 of 1970. The question then is whether what were a "new High Court" under the High Courts (Establishment) Order, 1970, continues to be so, notwithstanding the commencement of the interim Constitution and after its repeal, of the Constitution in the meantime ? The Interim Constitution, by an -independent provision in Article 194 envisaged establishment of a High Court for each Province or as the case may be; for any two Provinces subject to certain conditions stated therein. Therefore, as from the commencement of that Constitution "a new High Court" established under P. O. 8 of 1970 during the interregnum between the dissolution of the Province of West Pakistan and the commencement of the Interim Constitution, became a High Court as defined in Article 29 of that Constitution and established under Article 194 ibid. So also with the coming into force of the Constitution. each such High Court will be deemed to be a High Court established under Article

175. It would therefore, be a misnomer to treat a High Court established or continued under the Constitution to be what was once a "new High Court" under P. O. 8 of 1970. In our opinion the object underlying P. O. 8 of 1970 having been exhausted, the Order has become obsolete and after the commencement of the Constitution, an existing High Court is a High Court under Article 175 of the Constitution and not a "new High Court" within the meaning of P. O. 8 of 1970. To hold otherwise would amount to putting the clock back and ignoring the Constitutional changes taking place since the inception of the existing High Courts as from the 1st July, 1970. It is true the two Presidential Orders have not been repealed by Article 280 of the Interim Constitution read with the Sixth Schedule ibid and are retained on the Statute Book. But their purpose having been exhausted, and the Constitution having supervened they are now obsolete and these cannot be invoked in relation to any proceeding now pending in any High Court. For the foregoing reasons the petition is misconceived and is dismissed. S. A. H. Petition dismissed.