P L D 1965 Supreme Court 496 (PLP)

CORNELIUS, C. J.‑In this criminal matter arising out of an order made by the learned Chief Justice of the High Court of West Pakistan, all parties were represented at the. hearing of the petition for special leave to appeal. The points for decision lying within a narrow compass and all the relevant material being present on the record of the petition, we granted leave to appeal in the course of the hearing, and have thereafter heard anti decided the case as an appeal. The petitioner Shamsuddin had filed a complaint on .' the 18th January 1965, against the respondent Captain Gauhar Ayub, of a number of serious offences. The sections cited in the complaint are 148, 302/149, 398/149, 436/149 and 452/149, P. P. C. The fact that only a single accused person was cited in the case requires some explanation. Parts of the complaint were read to us at the hearing and the impression we gained was that the complaint was filed on the basis that the respondent Capt. Gauhar Ayub had been omitted from mention in certain earlier proceedings which had been commenced in respect of the same transaction. The transaction was the taking Out of a procession in Karachi on the 4th January 1965, in the course of which a number of offences were committed by the precisionists. The Police had instituted a number of cases in connection with these incidents, but Capt. Gauhar Ayub who was said to have been leading the procession was not mentioned in these or in any other cases and it was to . supply this omission that Shamsuddin filed his complaint mentioning only the one respondent. The complaint was entrusted to Mr. S. D. Qureshi, City and Additional District Magistrate, Karachi who was prevented from proceeding with it by a request for adjournment on the ground that Shamsuddin wished to move the High Court for the transfer of the case to the original side of the High Court. Adjournment was granted accordingly. On the 24th January 1965, Capt: Gauhar Ayub filed a petition in Lahore under section 526, Cr. P. C. praying the High Court "to order the transfer of the case pending against the petitioner in the Court of the City and Additional District Magistrate, Karachi, to a Court of competent jurisdiction in Lahore". (In the order of the learned Chief Justice the prayer of Capt. Gauhar Ayub has been described as follows:‑ "that the complaint case against him be transferred to the original side of the High Court but tried at Lahore." This was obviously said under a misconception). Shamsuddin filed his intended petition before the Karachi Bench on the 5th February 1965. Both the petitions were heard by the learned Chief Justice at Karachi, and were decided by a single order of the 25th February 1965. The principal ground for Shamsuddin's transfer application would appear to be that, in view of the status of the respondent and the fact of his having been, obliged to file a complaint, in order that justice should be done, the trial should be held at the highest possible level, namely, the High Court. Captain Gauhar Ayub's ground for wishing the case to be heard at Lahore were that on account of the recent political activity in Karachi, which had culminated in this incident, the atmosphere there was very tense and further that his own life would be in danger if the case was tried there. The order of the learned Chief Justice, while it mentions these allegations, contains no discussion as to the foundation for or the validity of these allegations, in relation to the two applications for transfer. This may, perhaps, be due to the assumption, mentioned, above, that both parties desired that the case should be tried in the High Court, and they were at issue only on the question whether the trial should take place at Karachi or at Lahore. The order states that Mr. Naqvi counsel for Shamsuddin was heard and he had put forward "two objections regarding the transfer of the case to Lahore". These were that Shamsuddin could not afford travelling expenses of his witnesses, or to engage a counsel at Lahore. To the first objection, the answer given in the order is as follows:‑ "If the case is tried by the High Court on its original side it will be a `trial', and according to law and the rules, Government will have to pay the travelling expenses and the daily allowance, of the prosecution witnesses." To the second objection, a different answer was given as below:‑ "As I have already stated it will be a `trial' like a sessions trial on the original side of the High Court and the State will be a party to it and the Public Prosecutor, will have to conduct the case for the prosecution. In the interest ‑ of justice I have asked Shamsuddin to name a counsel whom he wants to engage to conduct the case on behalf of the prosecution. He has stated that he would like Mr. Ali Mukhtar Naqvi, Advocate, to appear for the prosecution. The request is reasonable. I, therefore, direct that Mr. Ali Mukhtar Naqvi, Advocate, Karachi, be appointed as a Special P. P. to conduct this case at Lahore on behalf of the prosecution at Government expense." Mr. Naqvi was directed to hand in a‑ list of the prosecution witnesses to the Additional Registrar of the High Court at Karachi within a week, and thereafter, "the Judge who will hear the case will be nominated". The transfer was directed in the following words:‑ "I direct that this case be heard on the original side of the High Court at Lahore." Shamsuddin was granted leave to appeal against this order at the hearing of his petition. Mr. Z. H. Lari for the appellant first pressed the argument set out in the grounds of his petition as follows:‑ "because Karachi having been assigned to the West Pakistan High Court Bench at Karachi under Paragraph 4 of the High Court of West Pakistan (Establishment) Order, 1955, the Chief Justice was not authorised to transfer the case to Lahore". The statutory Order cited was made on the 9th October 1955, and had for‑ its purpose the establishment of a single High Court of Judicature for the Province of West Pakistan in place of the pre‑existing High Court at Lahore, the Chief Court of Sind, and the Judicial Commissioners' Courts in the N.‑W. F. Province and Baluchistan as well as "any other Court functioning as High Court in relation to the territories or areas now included in the Province of West Pakistan." It was directed an sub paragraph (3) of paragraph 3 that "the Nigh Court and the Judges and divisional Courts thereof shall sit at Lahore, but the High Court shall have Benches at Karachi and Peshawar and Circuit Courts at other places within the Province of West Pakistan, consisting of such of the Judges as may from time to time be nominated by the Chief Justice." By paragraph 4, , the Chief Justice was empowered to make provision inter alia for "(a) assigning areas to the Benches at Karachi and Peshawar in relation to which each Bench shall exercise jurisdiction vested in the High Court," as well as for transferring proceedings pending immediately before the commencement of the Order from the pre‑existing High Courts using that expression compendiously) . to the High Court at Lahore or to either of the outlying Benches or to a Circuit Court and to make incidental, supplementary and consequential order. It should be mentioned that the Chief Court of Sind at Karachi possessed original criminal jurisdiction in respect of the sessions division of Karachi within which area the offenses here in question were allegedly committed, but it would appear that at a later date than the 9th October 1955, this original jurisdiction was withdrawn by notification so that at the relevant time, the case in question, involving as it did the allegation of an offence of murder, would have fallen to be tried in the ordinary course by a Sessions Court at Karachi, but only upon commitment of the case to such Court by a Magistrate. Mr. Z. H. Lari urged that since the Karachi Sessions Division had been assigned to the Bench of the High Court at Karachi, by an order under paragraph 4, the case in question could not have been transferred to be tried by the High Court at any place other than Karachi. In other words, the argument is that trial of the case at Lahore would have been a trial outside the proper jurisdiction, and conceivably also, it involved the contention that no Judge of the High Court, not being a Judge nominated to the Bench at Karachi, could have jurisdiction to try the case. We do no think that it is possible to regard an order of assignment under paragraph 4 as having the effect of making a definitive, division of the jurisdiction of the High Court between the maim seat of the High Court at Lahore and the Benches at Karachi and Peshawar. Sub‑paragraph (3) of paragraph 3 clearly contemplates a single High Court, with its seat at Lahore, having jurisdiction throughout the territories of West Pakistan, except such parts thereof as were excluded by the Constitution or bylaw. The! Benches to sit at Karachi and Peshawar were to be composed of Judges of the High Court. Under clause 26 of the Letter Patent of the pre‑existing High Court of Lahore, which was made applicable to the West Pakistan High Court by paragraph 9 of the Order of 1955, "any function which is hereby directed to be performed by the High Court of Judicature at Lahore in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed 'or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915." It follows, therefore, that all the powers vested in the High Court of West Pakistan were also vested in each Judge of that High Court in respect of the whole area of the High Court's jurisdiction, anti thus was so wherever in that area, such powers should fall to be exercised by such Judge. The assignment of areas to the two Benches, under paragraph 4 of the Order, cannot be construed to restrict the jurisdiction of any Judge of .the High Court, in derogation of the full jurisdiction conferred by clause

26. To hold otherwise would be to confer power on the Chief Justice to confine the jurisdiction of any Judge of his Court, in a manner contrary to the main instrument conferring jurisdiction, not only on such. Judge, but upon the Chief Justice himself, and equally upon the whole Court. It would amount to creation of three High Courts with mutually exclusive jurisdictions, which is entirely outside the contemplation of the Order of 1955. Order of assignment under paragraph 4 must therefore be construed to be without effect upon the fulness of the jurisdiction vested in each Judge of the High Court in respect of the entire jurisdiction of the High Court, subject, of course, to such orders as the Chief Justice might make as to the distribution and disposal of work, among and by the Judges and the Division Courts, of the High Court. In the last‑mentioned respect, there is clearly nothing in the Order of 1955 which can be thought to detract in the slightest degree from the existence and the fulness of this power vested in the Chief Justice following upon the enforcement of that Order. There is provision in that Order for the delegation of such power by the Chief Justice to any other Judge of the High Court, but such a question as the transfer of a case from an outlying Bench of the High Court to the main seat at Lahore is evidently not one which is 'susceptible of being delegated to any Judge of the Court sitting at an outlying Bench. We can see nothing in paragraph 4 of the Order of 1955, which would justify the view that after an order of assignment of an area to a particular Bench has been made, the Chief Justice is thereafter devoiced of authority to transfer a case from that area pending in such Bench, either to the main seat of the High Court at Lahore or to another Bench or to a Circuit Court. The argument of Mr. Lari that the Chief Justice did not have power to order the transfer of a case belonging to an area assigned to the Karachi Bench from that Bench to Lahore is clearly devoid of substance. Mr. Lari next proceeded to argue, and this time with greater force, (although the effect of the argument was to defeat the very relief which his client had sought, namely, transfer of the case to the High Court) that such transfer of the case at it present stage was entirely outside the contemplation of the Criminal Procedure Code, so, that the High Court would be rendered powerless to deal with it as was required by the Code. Two of the offences alleged were triable exclusively by a Court of Session. Even with enhanced powers under section 30, Cr. P. C. a Magistrate could not try offences under sections 302 and 436, P. P. C. If there was to be a trial for these offences, there would of necessity have to be a commitment. The High Court was empowered by law either (a) to take cognizance of offence "upon a commitment" (section 194, Cr. P. C.) or (b) when it transfers a case to itself under section 526, Cr. P. C. "to observe in such trial. the same procedure" which the Court previously seized of the case would have observed. In either case, a trial is envisaged. The order under appeal itself made it clear that what was intended, by transfer of the case to the High Court, was that there should be a trial, and it should be "a trial like a Sessions trial". Commitment for trial was sine qua non to give effect to this order. Certain replies were attempted by learned counsel for the State and for the private respondent which will be briefly dealt with later. It seems to us to be clear that the order under appeal does not contemplate the making of an order of commitment to itself by the High Court. What it directs is a trial by the High Court, and it is difficult to see how such a trial could take place, without the complaint being taken through the procedure of Chapter XVIII of the Code, entitled `Of Enquiry into Cases triable by the Court of Session or High Court". The power of committing cases for trial is reserved by this Chapter to designated authorities, Viz. "any District Magistrate, Sub‑Divisional Magistrate or Magistrate of the First Class, or any Magistrate not being a Magistrate of the Third Class empowered in this behalf by the Provincial Government". Commitment by any other authority would appear to be excluded. So much is clear from the express provisions of the Code concerning directions for commitment made by Courts superior to that of a Magistrate. By section 437, provision is made for a case where; on examination of a record, it is found that an accused person has been improperly discharged by an inferior Court. In such a case, the Sessions Judge ‑ or the District Magistrate may inter alia "instead of directing a fresh inquiry, order him to be committed for trial", evidently by the inferior Court. Under section 526, the High Court's powers include the making of an order, "that an accused person be committed for trial to itself or to a Court of Session". This clearly contemplates that the Court seized of the case is one which is competent to make a commitment order, i.e., that it is a Magistrate's Court. The order under appeal being one transferring the case for trial, the above discussion is necessary only in relation to an argument raised by Mr. Shaukat Ali, for the private respondent, that the High Court could give necessary directions; after the case is received, to regularise the matter in law, and he appeared to rely for this upon the provision in section 526 empowering the High Court to order that an accused person be committed to itself for trial. He appeared to argue that power to direct the performance of an act by another authority includes power to perform the act by oneself, but where powers are divided with particularity, as they are in relation to the functions of commitment and of trial under the Code, such a general proposition is of no avail. The case being at the earliest stage of a complaint, there appears to us to be no power which under the Code, the High Court is competent to exercise in respect of it. If therefore the case is received on transfer in the High Court, the first step in regularisation which the High Court must take, is to return the complaint to the Magistrate before whom it was pending. Whether it can do so, under its own power, is a question which need not be answered, since it is a step which this Court in its appellate jurisdiction can direct should be taken, so that justice in accordance ,with law should be done in the matter. Mr. Manzur Qadir attempted to derive a power in the Higb Court, to try a case of the present kind without an order of commitment, from clause 15 of the Letters Patent. This clause and the following clause relate to the "ordinary original criminal jurisdiction" of the High Court and lay down that this jurisdiction shall be continued in the High Court at Lahore "in respect of all such persons within the Provinces of the Punjab and Delhi as the Chief Court of the Punjab had such criminal jurisdiction over immediately before the publication of these presents", and further that the High Court shall be empowered "to try all persons, bought before it in due course of law" In the exercise of this particular jurisdiction. Clearly, these clauses relate to particular persons, and reference to the Punjab Chief Court Act, 1865 (XXIII of 1865) furnishes necessary information of both these matters. Section 20 of that Act gave the Chief Court power "as a Court of original jurisdiction, to try European British subjects committed to it for trial" and there followed a considerable number of sections prescribing the procedure, including the process of commitment, in relation to this special jurisdiction in respect of European British subjects. It is clear that clauses 15 and 16 of the Letters Patent have no concern with a case like the present. Moreover, the requirement of being brought before the Court "in due course of law" is expressly mentioned in clause

16. Direct trial on a complaint was outside the contemplation of these two clauses. They are now totally devoid of force. In terms of the Letters Patent, all original criminal jurisdiction of the High Court is "extraordinary", falling under clause 17 which empowers the High Court to "try at its discretion any (such) persons brought before it on charges preferred by any Magistrate". The learned Advocate‑General for the Provincial Government invited attention to clause 22 of the Letters Patent and contended that read with . paragraph 9 of the Order of 1955, this clause enabled the making of an order such as that 'under appeal. E Clause 22 of the Letters Patent gives power to the High Court "to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction" but this necessarily implies that both Courts have jurisdiction to do that which is required to be done in the case.' Clause 22 also gives power to the High Court to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction of some other officer or Court." The High Court is clearly not a Court competent to carry out a "preliminary investigation" such as an inquiry under Chapter XVIII of the Code. This clause, in respects relevant to the case, does no more than to provide power to transfer the complaint for such enquiry from Karachi to the Court of a Magistrate at any place outside the Karachi jurisdictional area, who is otherwise competent to deal with it under Chapter XVIII. Similar power is contained in section 526 (1) (e) (i) of the Code, and the reference to clause 22 does not serve to advance the argument in any sense. The rest of the learned Advocate‑General's argument consisted of reference to a number of reported judgments in trials conducted in the High Court at Lahore. None of these cases bears the least resemblance, in respect of the questions arising for decision, to the present case. All related to offences which were triable by Magistrates, and on transfer to the High Court, the cases were tried by the procedure which those Magistrates would have followed. As precedents, therefore, these references had no particular utility. We find the conclusion to be unavoidable that in the present case, at the stage in which it was when it was brought before the High Court, it was not competent for the High Court, to make an order transferring the case to itself for trial and therefore we hold that the order of the learned Chief . Justice granting the prayer of Shamsuddin for such a transfer was one which he was not competent to make and which should therefore be set aside. This is not what Shamsuddin prayed by his petition, for what he sought was an order of transfer for trial by the High Court at Karachi‑ in place of the learned Chief Justice's order for trial by the High Court at Lahore. The law, however, is perfectly clear that at the present stage the case could not be transferred to the High Court for trial at all. It is necessary that it should be returned to the Magistrate for inquiry under Chapter XVIII, and it would then be open to the High Court to direct under section 526 (1) (e) (iv) that the case should be committed to itself for trial, if it should think fit. As for the petition of Captain Gauhar Ayub, it is clear that the learned Chief Justice's order, when it states that the prayer in this petition was for transfer of the case to the High Court; suffers from misconception. The relief that was sought by this petition was transfer to a Court of competent jurisdiction at Lahore, and since it is clear that the only Court of competent jurisdiction in relation to the case at its present stage is the Court of a Magistrate acting under Chapter XVIII of the Code, it is obvious that by the order transferring the case for trial by the High Court at Lahore, there has been no proper disposal of Captain Gauhar Ayub's petition. In the result, we direct that Shamsuddin's petition for transfer of the case to the High Court for trial should stand dismissed, and that Captain Gauhar Ayub's petition for transfer of :the case to a Court of competent jurisdiction at Lahore should be returned to the High Court for disposal according to law. The appeal is disposed of accordingly. A. H. Order accordingly.