P L D 1959 (W (PLP)

Mr. Khalid, the learned advocate for the applicant raised three fold contentions before us: (1) that the Tribunal constituted under the Sind Control of Goondas Act is a Court ; (2) that the Tribunal is a Court subordinate to a High Court ; and (3) that section 26 of the Sind Control of Goondas Act which empowers the Provincial Government to transfer a case from one Tribunal to another in a Province does not affect the power of the High Court to transfer the case pending before the Tribunal. We heard the learned advocate for the applicant at some length and we have come to the conclusion that the Sind Control of Goondas Act, 1952 is a special Act which has conferred the pow"' of transfer of a case pending before a Tribunal to the Provincial Government, and has thereby taken away the power of the High Court. In this view of the matter the contention of Mr. Khalid that the Tribunal under the Sind Control of Goondas Act is a Court subordinate to the High Court does not require consideration. That the Sind Control of Goondas Act, 1952 is a special Act does not require much argument. The preamble of the Act runs as under :‑ "Whereas it is expedient to provides for special measures for the better control of Goondas and for ancillary matters." It is clear from the above preamble of the Act that the Act is a special Act relating to a special subject. The Sind Control of Goondas Act, 1952 being a special Act, the provisions of the Code of Criminal Procedure would be applicable only to that extent as is provided in the special Act. In this connection reliance may be placed on sub‑clauses (1) and (2) of section 1 and sub‑clause (2) of section 5 of the Code of Criminal Procedure. The relevant provisions run as under :‑ 1. (1) This Act may be called the Code of Criminal Procedure, 1898 ; and it shall come into force on the first day of July 1898. (2) It extends to the whole of British India ; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force . . . . . 5. (2) All offences under any other law shall be investigated inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The question is whether the Control of Goondas Act makes any special provision for transfer of a case pending before a Tribunal. The answer is to be found in section 26 of the Act which runs as under :‑ "

26. The Provincial Government may by an order in writing transfer a case from one Tribunal to another in the Province." The intention of the framer of the enactment is very clear from the above provision. The Governor did not want that Courts should exercise the power of transfer of a case pending before a Tribunal. The Act has specifically mentioned under sections 10, 16, 18 and 20 the extent to which the Criminal Procedure Code has been made applicable. If the intention of the Governor was to make the provisions of section 526 relating to transfer or section 561A relating to inherent power of the High Court applicable, he would have done so. Moreover, the power given to the Provincial Government to transfer a case pending before a Tribunal is inconsistent with the power of the High Court under section 526, Cr. P. C. Section 26 of the Act read with section 22 of the Act makes it clear that it is only the Provincial Governmen which will have power to transfer a case pending before a Tribunal. In this connection section 22 of the Control of Goondas Act may be reproduced :‑ "

22. The provisions of this Act, and any order made or action taken under this Act, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, for the time being in force, and in any instrument having effected by virtue of any such enactment other than this Act." If the provision of section 26 of the Act is to be given effect, the power given to the High Court under section 526 of the Criminal Procedure Code cannot be invoked. The contention of Mr. Khalid that the power of the High Court to transfer a case pending before a Tribunal can co‑exist with the power of the Provincial Government to transfer a case pending before a Tribunal is without any substance. If an application is made to the Provincial Government for transfer of a case from one Tribunal to another and the Provincial Government does not entertain the same, the question is can the person aggrieved make an application to the High Court for transfer. According to the learned advocate for the applicant, he can do so. Such a contention would be a negation of the object for which this special Act was made. If the High Court were to entertain an application for transfer of a case pending before a Tribunal to another Tribunal on the same grounds after the same has been dismissed by the Provincial Government, it would amount to sitting in judgment over the decision of the Provincial Government. We have no doubt that the object underlying the special Act is to avoid the High Court's jurisdiction in matters which are not mentioned in the Act itself. The High Court has power of revision to the extent mentioned in section 17 of the Act and no more. Mr. Khalid contended that the power of the High Court conferred under Article 22 of the Letters Patent of Lahore High Court cannot be taken away by any enactment. There is not much force in this contention as the Letters Patent of the High Court of Judicature at Lahore was made applicable under para. 9 of the High Court of West Pakistan Establishment Order, 1955 to the West Pakistan High Court subject to "any other law for the time being in force". The power conferred on the High Court under Article 22 of the Letters Patent to direct the transfer of a case from one Court to another (assuming that the Tribunal is a‑Court) would be subject to the provision of section 26 of the Control of Goondas Act. Mr. Khalid in this connection also contended that the power of the High Court under section 561‑A is very wide. The inherent power of the High Court given under section 561‑A of the Criminal. Procedure Code can be invoked only (assuming that the Tribunal is a Court) when there is absence of a provision to meet a particular situation. In this case as we have already noticed section 26 of the Act specifically provides and confers power on the Provincial Government to transfer a case pending before a Tribunal to another Tribunal. Before we conclude, we might mention that the case of Abdul Quddus Bihari, (Criminal Transfer Application) does not lay down that the Tribunal is a Court inferior to a High Court and that the High Court has the power of transfer. This point was not raised before the learned Judge. It was assumed in that case that the High Court had power to transfer. Section 26 of the Control of Goondas Act 1952 was not considered. For the reasons given above, we would dismiss the application. K. B. A./A. H. Application dismissed.