P L D 1962 (W (PLP)

S. A. MAHMOOD, J.‑In the District of Campbellpur, which is assigned by the Chief Justice of the High Court of West Pakistan, under sub‑Article (a) of Article 4 of the High Court of West Pakistan (Establishment) Order, 1955, for the disposal of cases to Peshawar Bench of the High Court. Hasham was murdered and Muhammad Nagin and his brother Muhammad Safdar were injured on the 7th of August 1961. A report of the occurrence was made by Muhammad Nagin, and (1) Haji Nawab Khan, (2) Banaras, (3) Sher Afsar, (4) Aman Khan, (5) Muhammad Ashraf, (6) Muhammad Amin, (7) Khan Bahadur, (8) Qadar Khan, (9) Hakim Khan, (10) Yar Muhammad and (11) Muhammad Ayub were prosecuted on charges under sections 302/149, 307/149 and 148, P. P. C. In the Court of Mr. Saadat Nawaz Khan. The case was transferred to the Court of the Additional District Magistrate by the District Magistrate. On certain allegations, which need not be stated because they are not material for the purposes of this case, Muhammad Nagin filed an application (Criminal Miscellaneous No. 2270 of 1961) under section 526, Criminal Procedure Code, in this Court at Lahore for the transfer of the case from the District of Campbellpur, to a Court outside the jurisdiction of Peshawar Bench, requesting at the same time that the applica tion should be put up before the learned Chief Justice. The application was put up before me in view of an order of the Chief Justice of the High Court of West Pakistan, dated the 16th of October 1951, that cases of transfer from one Bench to another be placed before me, as and when they arise. The transfer application was admitted by me on the 22nd of November 1961 and a report was called for. Further proceedings in the case were also stayed. On the following day, Muhammad Nagin petitioner filed an application under section 497/498, P. P. C. in the petition box of this Court for cancellation of bail granted to Haji Nzwab Khan by Mr. Saadat Nawaz Khan and to Muhammad Yar Khan by the Additional District Magistrate, his application for cancellation of bail to the learned Sessions Judge, Campbellpur, having been rejected meanwhile. He stated in the application that he had already applied to this Court for the transfer of the case from the District of Campbellpur, that notice had been issued in it, that for the reasons stated in it, the bail granted to Haji Nawab Khan and Muhammad Yar be cancelled and that his application should be put up before the Chief Justice for decision. This application was also put up before me by the Deputy Registrar and a notice was issued by me to Haji Nawab Khan, Yar Muhammad Khan and the State on the 24th of November 1961. On the 5th of February 1962, Mr. Mahmud Ali, learned counsel for respondents Nos. 1 and 2, raised the following objections before me :‑ (1) That I had no jurisdiction to entertain or hear the petition, as it should have been filed at Peshawar and not at Lahore, and that it should go before the Peshawar Bench for decision, particularly when no prayer had been made in it for its transfer from Peshawar Bench to the Lahore Bench of the High Court, and no order of transfer had been made. (2) That cases relating to areas assigned to the Peshawar and Karachi Benches could not be disposed of by the Judges of the Lahore Bench, because even the Chief Justice had no power to transfer a case from one Bench to another, and as such, the delegation of power by the Chief Justice to me by his order, dated the 16th of October 1961, had no legal effect and did not entitle me to hear the case even by ordering a transfer of the case to a district assigned to the Lahore Bench or by transferring the petition to this Bench. 2. In view of the importance of the questions involved, this Full Bench has been constituted to decide them on a reference by me. 3. For a proper appreciation of the above contentions It is necessary to set out the relevant provisions relating to institution and disposal of judicial work in the High Court. On the integra tion of West Pakistan, section 7 of the Establishment of West Pakistan Act, 1955, provided that notwithstanding anything to the contrary contained In any law, the Governor‑General may by order establish a High Court for the Province of West Pakistan to replace the High Court in Lahore, the Chief Court of Sind and the Judicial Commissioners' Courts in N.‑W. F. P. and Baluchistan and any other Court functioning as High Court for any other specified territories, and the High Court so established and the Judges thereof shall exercise jurisdiction in relation to the whole of the Province of West Pakistan (except the Special Areas) and the powers and authority exercisable by the High Court in Lahore and the Judges thereof, immediately before the date on which the order comes into force, shall be exercisable by the High Court of West Pakistan and the Judges thereof in the while of the Province of West Pakistan, (except the Special Areas) and section 223 of the Government of India Act, 1935, shall be construed accordingly. Subsection (4) of section 7 empowered the Governor‑General to determine the places within the Province of West Pakistan at which the High Court or any Judges or division thereof may sit, and by subjection (5) all proceedings pending in the High Court of Lahore, the Chief Court of Sind, the Judicial Commissioners' Courts in N. W. F. P. and Baluchistin and other Courts functioning as High Court were transferred to the High Court of West Pakistan to be continued as proceed ings of that Court. Its subsection (6) empowered the Governor- General to make arrangements for the disposal of work in the High Court and to delegate to the Chief Justice of the High Court any of the powers conferred upon him under this subsection. The Governor‑General enacted the High Court of West Pakistan (Establishment) Order, 1955 (hereinafter called the Order) in exercise of power conferred by sections 5 (1) and 7 of the Establishment of West Pakistan Act read with section 229 (a) of the Government of India Act, 1935. 4. Article 4 (1) (a) of the Order enacts that the Chief Justice shall have power to make provision for all or any of the following matters, that is to say‑ (a) assigning areas to the Benches at Karachi and Peshawar in relation to which each Bench shall exercise jurisdiction vested In the High Court ; (b) transferring proceedings pending immediately before the commencement of the Order in the various Courts to the High Court or to a Bench at Karachi or Peshawar or a Circut Court, and (c) for all matters incidental, supplemental and consequential thereto. Article 4 (2) of the Order conferred power on the Chief Justice to determine what cases and what classes of cases shall be disposed of by the Judges nominated to Circuit Courts. In exercise of c the powers conferred by clause (a) of paragraph 1 of Article 4 and Article 9 of the Order read with clause 27 of the Letters Patent constituting the High Court of Judicature at Lahore, the Chief Justice of the High Court of West Pakistan by Notification No. 107‑S/IV‑A‑13, dated 14th October 1955, directed that: ‑ " (i) Until further orders the Benches of the High Court of West Pakistan functioning at Karachi and Peshawar, respectively, shall deal with the work of the High Court " of the areas noted against their names and for this purpose all cases, appeals and other proceedings pertaining to the areas specified against each Bench and entertain able by the High Court may be instituted before that Bench," and (ii) Subject to the provisions of clauses (iii), (iv) and (v) of this Order all other cases shall be dealt with by the Benches functioning at Lahore and shall be instituted there." By para. 2 of Notification No. 109‑S/IV‑A‑13 of even date, the Cheif Justice notified that tie Registrar of the High Court of Judicature at Lahore shall be the Registrar of the High Court of West Pakistan and the Registrar of the Judicial Commissioner's Courts in N.‑W. F. P, shill be tie Additional Registrar at Peshawar. By another Notification No. 111‑S./IV‑A‑13, of even date, the Chief Justice in exercise of powers conferred by Article 9 of the Order read with clause 27 of the Letters Patent of the High Court of Judicature at Lahore, directed that, subject to any law applying to regions served by the Benches at Karachi and Peshawar, until such time as other provision is made for regulating the practice of the High Court of West Pakistan, the practice prevailing in the High Court of Judicature at Lahore immediately before the date of the commencement of the Order with respect to proceedings before that Court shall be followed and applied to all proceedings before the High Court of West Pakistan. The effect of this Notification was to apply to the High Court of West Pakistan, including its Benches the practice and procedure relating to institution and disposal of judicial work embodied In the Lahore High Court Rules and Orders Volume V. 5. The First contention of Mr. Mahmud Ali, learned counsel for respondents Nos. 1 and 2, is that the petition could not have been Instituted at Lahore. This contention is based on Article 4 (1) (a) of the Order. It is argued that as Article 4 (1) (a) provides for assigning of areas to Benches at Karachi and Peshawar in relation to which each Bench shall exercise jurisdic tion, it follows that a case arising from an area under the jurisdiction of a particular Bench can only be instituted before and disposed of by that Bench and no other. The argument in substance is that each of the Benches at Karachi, Peshawar and Lahore has been given exclusive jurisdiction to entertain and decide cases relating to the areas assigned to them. This argu ment cannot be accepted, because the Article does not deal with the Institution of proceedings before the High Court, nor provides that cases from the assigned area shall exclusively be instituted before the particular Bench. The Article merely empowers the Chief Justice to assign areas in respect of which a Bench is to exercise jurisdiction ordinarily. It does riot provide that the Bench shall exercise exclusive jurisdiction in the area assigned to it. In the relevant Notification the Chief Justice has in assigning areas to the Benches of Peshawar and Karachi provided that " all cases of appeals and other proceedings pertaining to the areas specified against each Bench and entertainable by the High Court ` may be instituted ' before that Bench and all the other cases shall be instituted and dealt with by the Benches functioning at Lahore." Thus the Notification enables institution of all matters pertaining to its areas before the particular Bench, but does not affect or exclude institution of cases, entertainable by the High Court of West Pakistan, at Lahore. 6. Section 7 of the Establishment of West Pakistan Act, empowered the High Court of West Pakistan and its Judges on the Establishment of the Court to exercise jurisdiction in the whole of West Pakistan and such powers as were exercised by the High Court of Judicature at Lahore and provided that section 223 of the Government of India Act shall be construed accordingly. The Lahore High Court had for the exercise of its power provided in Chapter I, Volume V of the High Court Rules and Orders that the mode and place of institution of all matters entertainable by it was to file it in the petition box of the Court outside the room of the Deputy Registrar of the Court. The practice and procedure of the High Court has been made applicable to its Benches by Notification No. 111‑S/IV‑A‑13, dated 14‑10‑1955. Thus presentation may be by putting in appeal and petitions in the petition box of the Court outside the office of the Deputy Registrar as provided by Chapter I, Volume V of the Rules and Orders of High Court, or before the Bench having jurisdiction, as provided by Notification No. 107‑S/IV‑A‑13, dated 14th October 1955. Mr. Mahmud Ali argued that all the matters must be instituted before the Bench having jurisdiction as presen tation is to the Court, and an order of a Judge is necessary for its disposal, but this need not necessarily be so, as the rules or statute may provide otherwise. The rules enable institution of appeals and petitions at Lahore and no practical difficulty is caused in their disposal, as the Deputy Registrar can transmit the matters pertaining to the jurisdiction of Peshawar and Karachi Benches to them. But argues Mr. Mahmud Ali, could original civil suits, which the Karachi Bench of the High Court is alone competent to entertain be filed at Lahore 7 This question does not arise for decision before us, but this much is clear that the Lahore High Court had no power to entertain original civil suits and there was no provision in its rules for its institution in the High Court, and Karachi Bench of the High Court had power, and has been given exclusive jurisdiction to entertain and decide suits by Article 5 of the Order. I, therefore, hold that this petition could be filed in the petition box of the Deputy Registrar of this Court at Lahore, as was done in this case and that its institution here is not improper or invalid. 7. The next question is whether the petition could be disposed of by a Judge of the Lahore High Court without a formal order of its transfer from Peshawar Bench to the Lahore Bench of the High Court. It is trot denied by the learned counsel for respondents Nos. 1 and 2 in this connection that each Judge of the High Court of West Pakistan has jurisdiction throughout West Pakistan and is competent to decide any matter arising to West Pakistan, but it is contended that it is necessary for a Judge or a Division Bench of the Court to sit at Peshawar or Karachi to deal with cases arising from its assigned areas and that an order of transfer is necessary before it can be dealt with by a Judge or a Division Bench at Lahore. As the Notification referred to above provides that the Benches of the High Court of West Pakistan functioning at Karachi and Peshawar, respec tively, shall deal with the work of the High Court of the areas noted against their names, it follows that this case has to be disposed of by the Peshawar Bench, as Campbellpur District has been assigned to it. As no formal order of transfer had been made in this case, it could not be disposed of by a Judge of the Lahore Bench of the High Court, but since it has not been disposed of and I have only issued notice to respondents Nos. 1 and 2 to show cause why the bail granted to them be not cancelled, and I am authorised to exercise jurisdiction throughout West Pakistan, the order issuing notice to respondents Nos. 1 and 2 is not one which affects jurisdiction, but is at most irregular and the irregularity is curable under section 537 of the Code of Criminal Procedure. 8. It is also urged by Mr. Mahmud Ali that the Chief Justice has no power to transfer cases from one Bench to another, for the other Judges are not subordinate to him in the matter of judicial work. It is true that the other Judges of the Court are not a Subordinate Court but the power to assign cases and to transfer them from one Bench to another can be spelt out of the statutory provisions. Section 108 (2) of the Government of India Act, 1915, empowered the Chief Justice of each High Court to determine what Judge in each case was to sit alone and what Judges of the Court with or without the Chief Justice were to constitute the several division Courts. By section 223 of the Government of India Act, 1935, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges, including any power to make rules of Court, and to regulate the sitting of the Court and all members thereof sitting alone or in division Courts, shall be the same as Immedi ately before the Act and this continued the power conferred on the Chief Justice by section 108. Article 4 (1) (a) of the Order expressly conferred power of the Chief Justice to assign areas to the various Benches of the High Court of West Pakistani at Karachi, Peshawar and the Circuit Courts and to make provision for all matters incidental, supplemental and consequential thereto. From these provisions must be inferred the power in the Chief Justice to transfer a case from one Bench to another. This power may also be inferred as incidental, supple mental and consequential upon the Establishment of the High Court of West Pakistan and its various Benches and Circuit Courts as necessary concomitant of the division of the Court into Benches functioning at different places. A situation can be imagined in which there may be no Judge functioning at Peshawar for reason of illness or some other reason and in such case it cannot be denied that the Chief Justice must have the power to order transfer of the pending cases to Lahore Bench to be disposed of here. It may even be that the Judges constituting a Bench at Peshawar may not like to dispose of a particular case owing to their being connected with it as counsel at its earlier stage. Does it mean that It is necessary in such a case to send a Judge or Judges to the Peshawar Bench to dispose of that case, and that it could not be transferred to Lahore and disposed of here (?) Mr. Mahmud Ali, learned counsel fort he respondents Nos. 1 and 2, argues that if it was intended to give power to the Chief Justice to transfer a case from one Bench to another, that power should have been specifically conferred by the Act or the Order but I see no force in this contention, as its existence may have been presumed. In my view, if he has power to assign areas be has powers to transfer a case from one Bench to another as incidental, supplemental and consequential to the Benches being at different places and no express provision was necessary. I hold, therefore,' that the Chief Justice has ample power to order transfer of a case from one Bench to another. 9. It is not argued by the learned counsel for respondents Nos. I & 2 that this power cannot be delegated by the Chief Justice to another Judge of this Court and that if the power existed, its delegation is invalid. It is significant that Mr. Mahmud Ali has not raised this objection in the application, filed by Muhammad Nagin, which is being heard by me, for transfer of the case outside the area assigned to the Peshawar Bench. I hold, therefore, that the Chief Justice and in exercise of the delegated power, his delegatee and the Acting Chief Justice are empowered to order transfer of cases from one Bench to another for disposal. 10. My answers to the questions before the Full Bench are that the petition could he instituted at Lahore, though it may have been instituted at Peshawar, and that the Chief Justice has power, which can be delegated, to order transfer of a case from one Bench of the High Court of West Pakistan to another and that on the making of an order of transfer of the case or of a matter arising out of it can be disposed of by a Judge of another Bench of the Court, and not otherwise. SHABIR AHMED, J.‑I agree. J. ORICHESON, J.‑I also agree. A. H. Reference answered.