transfer cases. A Full Bench (5 Judges) of the Lahore High Court has empowered the Sessions Judge, in hearing the transfer petition, to allow criminal cases or appeals, which he has assigned to an Additional Sessions Judge, to commence the trial or hearing of the appeal. before withdrawing and hearing himself or entrusting it to another judge, provided that such action is necessary to meet the requirements of justice. Transfer Application No.10572-T of 2024
 | |||
| New decision on transfer cases. | A Full Bench (5 Judges) of the Lahore High Court has empowered the Sessions Judge, in hearing the transfer petition, to allow criminal cases or appeals, which he has assigned to an Additional Sessions Judge, to commence the trial or hearing of the appeal. before withdrawing and hearing himself or entrusting it to another judge, provided that such action is necessary to meet the requirements of justice. | Transfer Application No.10572-T of 2024 |
اس فیصلے کی کہانی یہ ہے کہ ایک درخواست گزار نے اپنی قبل از گرفتاری ضمانت کے لیے ایڈیشنل سیشن جج کے پاس درخواست دی تھی، لیکن اس درخواست پر شنوائی سے قبل یہ سوال اٹھا کہ کیا سیشن جج کو اختیار حاصل ہے کہ وہ اس مقدمے کو ایڈیشنل سیشن جج سے واپس لے کر خود سماعت کرے یا کسی دوسرے جج کو منتقل کرے۔
عدالت نے وضاحت کی کہ سیشن جج کے پاس یہ اختیار موجود ہے کہ وہ کسی بھی فوجداری مقدمے یا اپیل کو، جو اس نے ایڈیشنل سیشن جج کو تفویض کیا ہو، واپس لے یا منتقل کرے بشرطیکہ مقدمے کی سماعت یا اپیل کی شنوائی شروع نہ ہوئی ہو۔ اگر سماعت شروع ہو چکی ہو، تو پھر اس مقدمے کی منتقلی کا اختیار ہائی کورٹ کے پاس ہوگا۔
یہ فیصلہ اس لیے اہم ہے کیونکہ اس میں وضاحت کی گئی ہے کہ سیشن جج کو یہ اختیار کیوں دیا گیا ہے اور اسے کب اور کیسے استعمال کیا جا سکتا ہے۔ عدالت نے انصاف کی فراہمی کو جلدی اور مؤثر بنانے پر زور دیا اور درخواست گزار کو یہ اختیار دیا کہ وہ سیشن جج کے سامنے اپنی درخواست پیش کرے تاکہ مقدمے کو دوسری عدالت منتقل کیا جا سکے۔
اس فیصلے میں درخواست گزار کی پریئر (Prayer) یہ تھی کہ اس کی قبل از گرفتاری ضمانت کی درخواست کو، جو ایڈیشنل سیشن جج کے پاس زیر التوا تھی، واپس لے کر یا تو سیشن جج خود سماعت کرے یا کسی دوسرے ایڈیشنل سیشن جج کو منتقل کرے۔
درخواست گزار کا مؤقف تھا کہ انصاف کے بہتر حصول کے لیے مقدمے کی سماعت ایک ایسی عدالت میں کی جائے جہاں اس کا کیس غیر جانبداری اور شفافیت سے چل سکے۔
اس فیصلے میں سیشن جج کو درج ذیل اختیارات دیئے گئے ہیں:
1. مقدمے یا اپیل کو واپس لینا یا کسی دوسرے جج کو دینا:
سیشن جج کسی مقدمے یا اپیل کو، جو ایڈیشنل سیشن جج کو سماعت کے لیے دی گئی ہو، سماعت یا ٹرائل شروع ہونے سے پہلے واپس لے سکتا ہے۔
واپس لینے کے بعد، سیشن جج خود مقدمہ یا اپیل سن سکتا ہے یا اسے کسی دوسرے ایڈیشنل سیشن جج کو منتقل کر سکتا ہے۔
2. ضمانت کی درخواستوں پر کارروائی:
اگر مقدمے کا ٹرائل شروع نہیں ہوا تو ضمانت کی درخواست، جو کسی ایڈیشنل سیشن جج کے پاس زیر التواء ہو، واپس لے کر خود سن سکتا ہے یا کسی دوسرے جج کو منتقل کر سکتا ہے۔
3. مقدمے کی منتقلی کا اختیار:
سیشن جج کسی بھی مقدمے کو اپنی عدالت کے کسی بھی مجاز جوڈیشل مجسٹریٹ کو منتقل کر سکتا ہے، اگر ایسا کرنا انصاف کے لیے ضروری ہو۔
4. انتظامی اختیارات:
سیشن جج کے پاس مقدمات اور اپیلز کی تقسیم اور دوبارہ منتقلی کا انتظامی اختیار موجود ہے، جو عدالتی کارروائی کو منظم اور شفاف بنانے کے لیے استعمال کیا جا سکتا ہے۔
5. قانونی حد:
اگر مقدمے یا اپیل کی سماعت شروع ہو چکی ہو تو سیشن جج اس مقدمے یا اپیل کو واپس لینے یا منتقل کرنے کا اختیار نہیں رکھتا، اور ایسی صورت میں صرف ہائی کورٹ سے رجوع کیا جا سکتا ہے۔
یہ اختیارات عوام کو ان کی دہلیز پر فوری انصاف فراہم کرنے اور عدالتی کارروائی کو آسان اور موثر بنانے کے لیے دیئے گئے ہیں۔
Stereo H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
Transfer Application No.10572-T of 2024
Mian Zaheer Abbas Rabbani
…Vs…
The State, etc.
JUDGMENT
Date of hearing: 13.11.2024.
Petitioner by: Ch. Zulfiqar Ali Hargan, Advocate.
State by:
Rana Ahsan Aziz, Additional Prosecutor General and
Ms. Maida Sobia, Deputy Prosecutor General.
Mr. Rafaqat Ali Dogar, Deputy Attorney General.
Mr. Waqas Umar, Assistant Advocate General.
Respondents By: Nemo.
-----------------
Aalia Neelum, C.J.- The applicant filed an application
under Section 526 Code of Criminal Procedure, 1898 (hereinafter referred
to as "Cr.P.C.”) for transfer of pre-arrest bail No.851-4/19-12-2023, titled
“Mian Zaheer Abbas Rabani versus The State” whereby the petitioner
has sought withdrawal of the pre-arrest bail No.851-4/19-12-2023 in case
FIR. No.1386/2023, dated 16.12.2023, offences under Section 489-F PPC,
registered at the police station, City Tandlianwala, District Faisalabad from
the court of Mr. Muhammad Sajjad Hussain Khan, learned Additional
Sessions Judge, Tandlianwala, District Faisalabad and its transfer to any
other court of competent jurisdiction at Faisalabad or any other
Districts/Tehsil Courts.
2.
It was elicited from the arguments of the learned counsel for
the applicant and the learned Additional Prosecutor General (hereinafter
referred to as "APG”) to have clarification whether, under section 528(1A)
(1B) Cr.P.C., the learned Sessions Judge has the power to recall bail
applications pending in the court of any learned Additional Sessions Judge
Transfer Application No.10572-T of 2024
2
to another court in the same District or Tehsil. It was noticed that earlier,
the Full Bench of this court (Comprising of three members) dealt with an
identical matter, which was reported as PLD 2020 Lahore 382 titled
“Naveed Hussain versus The State, etc.” Then, the Honorable Chief
Justice constituted a larger bench (Comprising four members), and after
that, the case was heard at length. This is how the instant case comes up
before a larger bench. The question before this larger bench is referred for
the decision of whether a Sessions Judge has no power under section 528
of Cr.P.C. to transfer bail petitions from the court of an Additional Sessions
Judge to some other competent court within his Sessions division under
Section 528 Cr.P.C. We are required to answer this question.
3
The applicant has approached this court under Section 526
Cr.P.C. for the transfer of an anticipatory bail petition pending adjudication
before the court of Mr. Muhammad Sajjad Hussain Khan, learned
Additional Sessions Judge, Tandlianwala, District Faisalabad. Section 526
Cr.P.C. confers power on the High Court to transfer a case or appeal from
one subordinate Criminal Court to any other Criminal Court of equal
jurisdiction if it appears that it is expedient for the end of justice. The party
is interested in transferring a case from one criminal court to another
criminal court from one district to another and even in the same district.
Section 526 Cr.P.C. is reproduced hereunder for ready reference: -
526. High Court may transfer case or itself try it:
(1) Whenever it is made to appear to the High
Court:--
(a) that a fair and impartial inquiry or trial cannot be
had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is
likely to arise, or
(c) that a view of the, place in or near which any
offence has been committed may be required for the
satisfactory inquiry into a trial of the same, or
Transfer Application No.10572-T of 2024
3
(d) that an order under this section will tend to the
general convenience of the parties or witnesses, or
(e) that such an order is expedient for the ends of
justice, or is required by any provision of this Code;
it may order----
(i) that any offence be inquired into or tried by
any Court not empowered under Sections 177
to 184 (both inclusive) but in other respects
competent to inquire into or try such offence;
(ii) that any particular case or appeal; or class
of cases or appeals, be transferred from a
Criminal Court subordinate to its authority to
any other such Criminal Court of equal or
superior jurisdiction;
(iii) that any particular case or appeal be
transferred to and tried before itself; or
(iv) that an accused person be sent for trial to
itself or to a Court of Session.
(2) When the High Court withdraws for trial before
itself any case from any Court, it shall, observe in
such trial the same procedure which that Court
would have observed if the case had not been so
withdrawn.
(3) The High Court may act either on the report of
the Lower Court, or on the application of a party
interested, or on its own initiative.
(4) Every application for the exercise of the power
conferred by this section shall be made by motion,
which shall except when the applicant is the
Advocate-General, be supported by affidavit or
affirmation.
(5) When an accused person makes an application,
under this section, the High Court may direct him to
execute a bond, with or without sureties, conditioned
that he will, if so ordered, pay any amount which the
High Court may under this Section award by way of
compensation to the person Opposing the
application.
Transfer Application No.10572-T of 2024
4
Notice to Public Prosecutor of application under
this section. (6) Every accused person making any
such application shall give to the Public Prosecutor
notice in writing of the application, together with a
copy of grounds on which it is made, and no order
shall be made on the merits of the application unless
at least twenty-four hours have elapsed between the
giving of such notice and the hearing of the
application.
(6-A) Where any application for the exercise of the
power conferred by this section is dismissed, the
High Court may if it is of opinion that the
application was frivolous or vexatious, order the
applicant to pay by way of compensation to any
person who has opposed the application such sum
not exceeding five hundred rupees as it may consider
proper in the circumstances of the case.
(7) Nothing in this section shall be deemed to affect
any order made under Section 197.
(8) Adjournment on application under this section: If
in any inquiry under Chapter VIII or any trial, the
fact that any party intimates to the Court at any stage
that he intends to make an application under this
section shall not require the Court to adjourn the
case, but the Court shall not pronounce its final
judgment or order until the application has been
finally disposed of by the High Court and, if the
application is accepted by the High Court, the
proceedings taken by the Court subsequent to the
intimation made to it shall, at the option of the
accused be held afresh.
(9) If, before the argument (if any), for the admission
of an appeal begins, or, in the case of an appeal
admitted, before the argument for the appellant
begins, any party interested intimates to the Court
that he intends to make an application under this
section, the Court, shall, upon such party executing,
if so required, a bond without sureties of an amount
not exceeding five hundred rupees that he will make
such application within a reasonable time to be fixed
by the Court, postpone the appeal of such a period as
will afford sufficient time for application to be made
and an order to be obtained thereon.
Transfer Application No.10572-T of 2024
5
It may be mentioned here that section 526 of Cr.P.C. is similar
to the provision of section 528 (1-A) Cr.P.C. Learned counsel for the
applicant has submitted that the Sessions Judge is empowered under
section 528 of Cr.P.C. to transfer the bail petitions from the court of
Additional Sessions Judge to another competent court within his sessions
division, if it is expedient in the interest of justice and the limitations
imposed under section 528 (1-A) Cr.P.C. Section 528 Cr.P.C. is reproduced
hereunder for ready reference: -
528. Sessions Judge may withdraw cases from
Assistant Sessions Judge.
(1) Any Sessions Judge may withdraw any case
from, or recall any case which he has made over to,
any Assistant Sessions Judge subordinate to him.
(1 A) At any time before the trial of the case or the
hearing of the appeal has commenced before the
Additional Sessions Judge, any Sessions Judge may
recall any case or appeal which he has made over to
any Additional Sessions Judge.
(1 B) Where a Sessions Judge withdraws or recalls a
case under sub-section (1) or recalls a case or appeal
under sub section (1 A), he may either try the case in
his own Court or hear the appeal himself, or make it
over in accordance with the provisions of this Code
to another Court for trial or hearing, as the case may
be.
(1 C) Any Sessions Judge may withdraw any case
from, or recall any case which he has made over to,
any Magistrate subordinate to him, and may refer it
for inquiry or trial to any other such Magistrate
competent to inquire into or try the same. [Inst. by
Law Reforms Ordi. 1972 Para. 173.]
Explanation. All Magistrates shall be deemed to be
subordinate to the Sessions Judge for the purposes of
this sub-section.
(2) & (3) ---------[Omitted by Law Reforms
Ordinance, 1972].
Transfer Application No.10572-T of 2024
6
(4) Any Magistrate may recall any case made over
by him under section 192, sub-section (2), to any
other Magistrate and may inquire into or try such
case himself.
(5) A Magistrate making an order under preceding
sub-section shall record in writing his reasons for
making the same.
(underline and bold by us for emphasis)
A thorough examination of the Code of Criminal Procedure,
1898, reveals that Section 9 empowers the Provincial Government to
establish courts of session, appoint judges, and direct where such courts
shall hold their sitting. Section 9 Cr.P.C. is reproduced hereunder for ready
reference: -
9. Court of Session. –
(1) The [Provincial Government] shall establish a
Court of Session for every sessions division, and
appoint a judge of such Court.
(2) The [Provincial Government] may, by general or
special order in the official Gazette, direct at what
place or places the Court of Session shall hold its
sitting; but, until such order is made, the Courts of
Session shall hold their sittings as heretofore.
(3) The [Provincial Government] may also
appoint Additional Sessions Judges and Assistant
Sessions Judges to exercise jurisdiction in one or
more such Courts.
(4) A Sessions Judge of one sessions division may
be appointed by the 1 [Provincial Government] to be
also an Additional Sessions Judge of another
division, and in such case he may sit for the disposal
of cases at such place or places in either division as
the 1 [Provincial Government] may direct.
(5) All Courts of Session existing when this Code
comes into force shall be deemed to have been
established under this Act.
(underline and bold by us for emphasis)
Transfer Application No.10572-T of 2024
7
From a close reading of the above-said provisions of the Code,
it becomes abundantly clear that the Code uses the words “court of
sessions,” “Sessions Judge,” “Additional Session Judge,” and “Assistant
Sessions Judge” with the difference in their meanings. It is also clear that a
court presided over by an Additional Sessions Judge is also a court of
Sessions. The “Additional Session Judge” powers are similar to those of
the Sessions Judge. The difference is that the Sessions Judge presides over
the Sessions Court and is the person who can receive the cases, appeals,
revisions, and all other petitions under the law that the Additional Sessions
Judge could not receive directly. The Additional Sessions Judge can only
hear the cases entrusted to him by the Sessions Judge. The Additional
Sessions Judge has no power under the law to entrust cases to the other
courts. Sub-Section (4) of Section 17 of the code provides for an
emergency in which whenever the Sessions Judge is unavoidably absent or
incapable of acting, he may make provision for the disposal of any urgent
application by an Additional or Assistant Sessions Judge, or if there be no
Additional or Assistant Session Judge, by such Judge or Magistrate shall
have jurisdiction to deal with any such application. Except for this
provision of law in the Code, no provision makes the Additional Session
Judge subordinate to the Session Judge. Sub-Section (4) of Section 17 of
the Code is reproduced hereunder for ready reference: -
17. Sub-Ordination of Magistrate and Benches to
Sessions Judge:-
(1). -----------------
(3) ------------------
(4). The Sessions Judge may also, when he himself
is unavoidably absent or incapable of acting, make
provision for the disposal of any urgent application
by an Additional or Assistant Session Judge or if
there be no Additional or Assistant Judge, by such
Judge or Magistrate shall have jurisdiction to deal
with any such application.
Transfer Application No.10572-T of 2024
8
Section 193 of the Code deals with the procedure regarding
making over the cases to the Additional and Assistant Sessions Judges in
the sessions division. The said section reads as follows: --
193. Cognizance of offences by Courts of Session.-
(1) Except as otherwise expressly provided by this
Code or by any other law for the time being in force,
no Court of Session shall take cognizance of any
offence as a Court of original jurisdiction, unless the
case has been sent to it under section 190, subsection (2).
(2) Additional Sessions Judges and Assistant
Sessions Judges shall try such cases only as the
[Provincial Government] by general or special
order may direct them to try, or as the Sessions
Judge of the division, by general or special order,
may make over to them for trial.
(underline and bold by us for emphasis)
The provisions quoted above would give a picture of the
making over, recalling, and transferring of cases within a Sessions
Division. Section 193 of the Code states that an Additional Sessions Judge
is to handle only those cases made over to him by the Sessions Judge.
VOLUME IV, CHAPTER I SUPERINTENDENCE AND CONTROL,
PART I – GENERAL, PART G --- POSITION OF ADDITIONAL
DISTRICT AND SESSIONS JUDGES of the High Court Rules
provided that:
2. Additional Judge is subordinate to the District
Judge in administrative matters.
-
In
administrative matters, the position of the District
Judge is defined in Section 33 of the Punjab Courts
Act, 1918. Subject to the general superintendence
and control of the High Court, the District Judge is
to have control over all Civil Courts under that part
of the Act and within the local limits of his
jurisdiction; the Court of an Additional Judge is
included among such Courts by the earlier Section
18. It follows that for purposes of administrative
control such as the grant of casual or other leave,
Transfer Application No.10572-T of 2024
9
appointment of ministerial staff and general
discipline, the Additional Judge is subordinate to
the District Judge; and that all correspondence
with the High Court should ordinarily be
addressed through the District Judge.
The Code does not define the words "Case” and trial used in
Sub-Section (1-A) Section 528, Cr.P.C. Above said various provisions of
the Code indicate that the Code is not confined to the cases in which
offences only are tried, but includes many other type of proceedings that,
may not be strictly called as trials of offences, for example, security
proceedings or maintenance proceedings or bail applications, which can by
no stretch of imagination be construed as cases wherein offences are tried;
nevertheless they are essential part of the cases which the Criminal Courts
try. It goes without saying that ‘case’ comprises various stages, i.e., the
case at the investigation stage, the case at the inquiry stage, and the case at
the trial stage; so, the case is not only trial but also other proceedings as
well, e.g., physical as well as judicial remand of the accused, order on
application of superdari (سپرداری) of case property, application for bail and
other allied matters. It is relevant to mention here that at the time of
deciding the application for bail, the court applies its judicial mind to
determine whether reasonable grounds are available on the record to
connect the accused with the commission of an offence and passes a
speaking order of judicial nature which is termed as “case decided”; in this
regard, case of “Iqbal Hussain versus The State” (PLD 1985 Lahore 65)
can be advantageously referred; the relevant portion from the same is
hereby reproduced:-
“It is by now well settled that the term ‘case’ does
not necessarily mean the “whole case” and this term
is wide enough to include decision on any
substantial question even though the same is of
interlocutory nature as distinguished from purely
formal and incidental order
Transfer Application No.10572-T of 2024
10
Similarly, reference can also be had to the case of “Abdul
Rafiq alias Oassu versus The State” (1994 P.Cr.L.J 2507); the relevant
portion from the same is hereby reproduced:-
“The order passed on a bail application is a judicial
order. The word “Case” is a very wide term which
would include all the miscellaneous applications
moved in a case on which a judicial order is to bell
passed. In the case of Haji Karamat Ali Pandat v.
Saadat Ali alias Shahadat Ali and others (1955) 7
DLR 351 it was held that word “case” as used in
section 192, Cr.P.C. is wide enough to include a
case under section 193, Cr.P.C. IC”
Article 37(d) of the Constitution of the Islamic Republic of
Pakistan, 1973 requires inexpensive and expeditious justice to the litigants
at their doorstep in accordance with law; in this regard, guidance has been
sought from the case of “Mehboob Hassan versus Akhtar Islam and
others” (2024 SCMR 757). Even the Legislature, in furtherance of said
spirit, introduced Section: 439-A Cr.P.C. for providing the remedy of
revision to the litigants at their doorstep, i.e., at Sessions Court level;
similarly, Section: 491(1-A) Cr.P.C. was also introduced for providing the
remedy of getting the order in habeas corpus petitions at Sessions Court
level; needless to add that Section: 22-A, B Cr.P.C. was also introduced for
providing remedy to the public at their door step for having issuance of
direction regarding registration of case, etc.; similarly, Section: 528 (1-A
and 1-B) was brought on the statute for empowering Sessions Judge to
recall any case or appeal which he has made over to any Additional
Sessions Judge before the commencement of trial of the case or hearing of
the appeal and may try the case in his own court or hear the appeal himself,
or make it over to another court for trial or hearing.
4.
It appears from a plain reading of Sub-Section (1-A) Section
528, Cr.P.C. that at any time before the trial of the case or hearing of the
appeal has commenced before an Additional Sessions Judge, the Sessions
Judge may recall any case or appeal which he has made over to him. It,
Transfer Application No.10572-T of 2024
11
therefore, follows that the Sessions Judge is not empowered to withdraw or
recall any case or appeal that he has made over to an Additional Sessions
Judge after the trial of the case or hearing of the appeal has commenced. It
is noteworthy that given Section 193 Cr.P.C., an Additional Sessions Judge
is empowered to try only such cases as the Sessions Judge of the division
by general or special order makes over to him for trial, and in view of
Section 409 Cr.P.C., an Additional Sessions Judge is empowered to hear
only such appeals as the Sessions Judge of the division may by general or
special order make over to him. The making over of a case for trial or an
appeal for hearing to an Additional Sessions Judge by the Sessions Judge
relates to the distribution of business, which is purely administrative.
Section 409 of the Code is reproduced hereunder for ready reference: -
Sec 409. Appeals to Court of Session how heard:
Subject to the provisions of this section, an appeal to
the Court of Session or Sessions Judge shall be heard
by the Sessions Judge or by an Additional Sessions
Judge or an Assistant Sessions Judge:
Provided that an Additional Sessions Judge shall
hear only such appeal as the Provincial
Government may, by general or special order,
direct or as the Sessions Judge of the Division
may make over to him:
Provided further that no such appeal shall be heard
by an Assistant Sessions Judge unless the appeal is
of a person convicted on a trial held by any
Magistrate of the Second Class or Third Class.
(underline and bold by us for emphasis)
The scheme of the Code clearly shows that the exercise of
power by the Sessions Judge under Sections 193 read with 17(4) of the
Code is administrative in nature; it is the simple distribution of work. The
question is how to invoke the power under Section 528(1-A) of the Code.
Is it open to a litigant to move the Sessions Court for such withdrawal or
recall? Once there is the source of power as conferred under the Code, one
Transfer Application No.10572-T of 2024
12
does not need to labor much as to how to exercise that power. The
Additional Sessions Judge could reference it, which could be on motion
made by a litigant. However, the scope of the motion is only for
administrative convenience. HIGH COURT RULES AND ORDERS,
(Volume III), CHAPTER 26, TRANSFER OF CRIMINAL CASES,
PART A. – Transfer of Criminal Cases.
2. Sessions Judges' power to transfer. Under
section 528 of the Code, Sessions Judges also have
the general power to withdraw any case from any
Judicial Magistrate and to refer it for enquiry or trial
to any other Judicial Magistrate competent to inquire
into or try the same.
The Sessions Judge may also, at any time before
the trial of a case or the hearing of an appeal has
commenced before an Additional Sessions Judge,
recall the case or appeal and may try the case or
hear the appeal himself or may make it over to
another Court for trial or hearing, as the case
may be.
Sessions Judge may empower any Judicial
Magistrate who has taken cognizance of any case to
transfer such case for trial to any other Judicial
Magistrate in his District any such magistrate may
dispose of the case accordingly.
As noted above, one course is under Section 528 (1-A) Cr.P.C.
for withdrawing, recalling, and making over. However, under Section 528
(1-A) Cr.P.C., once the trial of the case has commenced or the hearing of
the appeal has started, the exercise of that power under Section 528 (1-A)
Cr.P.C. is barred. Should it mean that in such a situation, the only resort is
the High Court? If so, what is the logical meaning and purpose of Section
528 (1-A) Cr.P.C.?
Section 528 (1-A) Cr.P.C. is related to the power of the
Sessions Judge to withdraw cases and appeals. This power is conferred on
the Sessions Judge presiding over the Court of Session. Section 528 (1-A)
Transfer Application No.10572-T of 2024
13
Cr.P.C. provides that the power of transferring a criminal case from one
criminal court to another in the Sessions division is to be exercised only if
it is expedient for the end of justice. It does not require an elaborate
discussion to hold that it is a judicial exercise of power. The Additional
Sessions Judge is not subordinate to the Sessions Judge. But it has to be
noted that the Additional Sessions Judge gets jurisdiction to deal with a
case only if such a case or appeal is made over to him by the Sessions
Judge. Any time before the trial or hearing of the case or appeal, the
Sessions Judge is also empowered to withdraw such cases. That power
conferred on the Sessions Judge is meant in the interests of the litigant
public and also to lessen the burden of the High Court, lest, for every
transfer of a criminal case or appeal in a sessions division, the litigant
public will always have to approach the High Court. Since the power under
Section 528 (1-A), Cr.P.C. is judicially exercised, therefore, reasons are to
be recorded, any party aggrieved can always take recourse to the remedy
under Section 526 Cr.P.C. Similarly, under Section 528 (1-C) Cr.P.C.
Sessions Judge may withdraw any case from or recall any case which he
has made over to any Magistrate subordinate to him and may refer it for
inquiry or trial to any other Magistrate competent to inquire into or try the
same. Since the application for bail in a case is part of the case, therefore,
before the commencement of the trial, the application for bail pending
before any Additional Sessions Judge can be recalled by the Sessions Judge
from the cause list of learned Additional Sessions Judge, and he can hear
the same himself or make it over to any other Additional Sessions Judge
for hearing; similarly, before the commencement of trial, Sessions Judge
may withdraw the case from cause list of learned Additional Sessions
Judge and he can hear the same himself or make it over to any other
Additional Sessions Judge for hearing; before hearing of the appeal,
Sessions Judge may withdraw the appeal from cause list of learned
Additional Sessions Judge and he can hear the same himself or make it
over to any other Additional Sessions Judge for hearing. Even in cases
Transfer Application No.10572-T of 2024
14
triable by a Magistrate, the application for bail pending before any learned
Additional Sessions Judge can be withdrawn from said court and heard by
Sessions Judge himself or made over to any learned Additional Sessions
Judge for hearing. However, if the trial has commenced, then the case
cannot be withdrawn from the Additional Sessions Judge by the Sessions
Judge, and, at that stage the application for bail pending before the
Additional Sessions Judge can also not be withdrawn, and for that purpose,
the relevant forum would be the High Court.
5.
It will also be profitable to draw an analogy regarding the
exercise of power by the District Court under Section 24 of the Code of
Civil Procedure, 1908. The said section reads as follows: --
Section 24 General power of transfer and
withdrawal:
(1) On the application of any of the parties and after
notice to the parties and after hearing such of them
as desire to be heard, or of its own motion without
such notice, the High Court or the District Court may
at any stage---
(a) transfer any suit, appeal or other
proceeding pending before it for trial or
disposal to any Court subordinate to it and
competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other
proceeding pending in any Court subordinate
to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal
to any Court subordinate to it and
competent to try or dispose of the same;
or
(iii) re-transfer the same for trial or
disposal to the Court from which it was
withdrawn.
Transfer Application No.10572-T of 2024
15
(2) Where any suit or proceeding has been
transferred or withdrawn under sub-section (1), the
Court which thereafter tries such suit may, subject to
any special directions in the case of an order of
transfer, either retry it or proceeded from the point at
which it was transferred or withdrawn.
(3) For the purposes of this Section, Courts of
Additional and Assistant Judges shall be deemed to
be subordinate to the District Court.
(4) The Court trying any suit transferred or
withdrawn under this section from a Court of Small
Causes shall, for the purposes of such suit, be
deemed to be a Court of Small Causes.
The Presiding Officer of a District Court is the District Judge.
The District Judge on the civil side is empowered to transfer any case from
one Additional District Court at any stage. If so, why should there be a
restricted meaning for transfer on the criminal side if a provision akin to
Section 24 (3) CPC regarding subordination is not expressly provided
under the Code of Criminal Procedure 1898? Should not that enabling
provision be read into under Section 528 Cr.P.C. It goes without saying
that Section 528 Cr.P.C. appears under Chapter XLIV of the Code dealing
with the transfer of criminal cases and itself is captioned as the power of
Sessions Judge to transfer cases and appeals from one criminal court to
another criminal court at any time before the trial of the case or the hearing
of the appeal has commenced before the Additional Sessions Judge. It has
also to be noted that the power under Section 528 is to be exercised only if
it is expedient for the end of justice and not for any other reason. Thus,
there is a statutory but administrative subordination in making over,
recalling, withdrawing, and transferring cases, as far as the Additional
Sessions Judge is concerned, to the Sessions Judge. The power of transfer
does not always depend on superior jurisdiction. It can also confer power,
as seen in Section 24 of the Civil Procedure Code, 1908. Thus, given the
scheme provided under the Criminal Procedure Code, 1898 conferring
power on the Sessions Judge to transfer a case/appeal pending before the
Transfer Application No.10572-T of 2024
16
Additional Sessions Judge, the decision in the case titled “NAVEED
HUSSAIN Versus The STATE and Others” reported as P L D 2020
Lahore 382, (supra) requires to be overruled and we do so.
6.
As in the instant case, since the facts and law are intertwined
in the pre-arrest bail petition, the petitioner is certainly free to move the
Sessions Judge under Section 528 Cr.P.C. for withdrawing and transferring
the petition to another Additional Sessions Court so that it can be heard and
decided.
7.
With above observations, instant petition stands disposed of.
8.
The Registrar shall immediately transmit copy of this
judgment to all Sessions Judges in Punjab for compliance as well as
intimation to all the Judicial Officers in the Province of Punjab.
(Aalia Neelum)
Chief Justice
(Asjad Javaid Ghural)
(Syed Shahbaz Ali Rizvi)
Judge
Judge
(Ali Zia Bajwa)
(Farooq Haider)
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