Naqash Rasheed vs The State
This matter originated from a reference sent by the District Court of Criminal Jurisdiction, Poonch/Rawalakot, seeking guidance on a post-arrest bail application filed on statutory grounds. The core legal question addressed by the High Court was whether a subordinate court is competent to refer a matter to the High Court for instructions on how to proceed in a novel situation. The High Court, relying on established precedents, held that subordinate courts lack the authority to solicit instructions from the High Court through such references. The Court noted that the statutory provisions formerly empowering subordinate judges to send references for instructions have been omitted. Consequently, the High Court ruled that the subordinate court must decide the matter independently, applying the relevant provisions of law to the specific circumstances of the case, rather than seeking guidance from the High Court. The reference was thus answered by directing the trial court to adjudicate the bail application itself, without the High Court offering an opinion on the merits of the underlying legal issue regarding the calculation of time during the Covid-19 pandemic.
- Is a subordinate court competent to send a reference to the High Court seeking instructions on how to decide a pending matter?
- Does a subordinate court have the authority to solicit guidance from the High Court under the Code of Criminal Procedure 1898?
- Should a trial court decide a bail application independently when faced with a novel legal situation?
- Section 147, Azad Penal Code
- Section 148, Azad Penal Code
- Section 149, Azad Penal Code
- Section 109, Azad Penal Code
- Section 337A, Azad Penal Code
- Section 302, Azad Penal Code
- Section 324, Azad Penal Code
- Section 15-2A/AA, Azad Penal Code
- Section 432, Code of Criminal Procedure 1898
- Section 433, Code of Criminal Procedure 1898
ORDER
1. SADAQAT HUSSAIN RAJA, CJ. The above titled reference has been sent by District Court of Criminal Jurisdiction Poonch/Rawalakot for guidance/opinion regarding disposal of the after arrest bail application, filed on behalf of accused/petitioner, before the concerned court.
2. Brief facts of the case are that a case under FIR No.165/2019 under sections 147/148/149, 109, 337A, 302, 324, APC and 15-2A/AA against accused/petitioner and others at Police Station Rawalakot. The accused/petitioner was apprehended by the police. Accused/petitioner along with others have been challaned under the aforementioned offences before the District Court of Criminal Jurisdiction Rawalakot. During trial, accused/petitioner, instituted post arrest bail application, before District Court of Criminal Jurisdiction, Poonch Rawalakot (court below) on statutory ground.
3. The learned court below after hearing arguments, sent the present reference to this Court for guidance.
4. Without going into the detail facts and merit of the case suffice it to say that the accused/petitioner filed post arrest bail application on the statutory ground before trial Court. Raja Aftab Ahmed, Advocate for the petitioner/accused and learned AAG for the respondents have been heard at length. After hearing the learned counsel for the parties and going through the law on the subject, I am of the view that the point which needs resolution by this Court is whether the reference sent by District Criminal Court Rawalakot is competent or not?
5. A Subordinate Court was empowered to send reference to this Court for soliciting instructions as to what he should do if a new situation is arisen. Under Sections 432 and 433 of the Criminal Procedure Code, a Division Bench Karachi High Court in a Criminal Reference No. 08 of 1990 decided on 05.08.1991 decided the case on the basis of case titled "Emperor v. Madho Singh AIR 1925 All. 318" and "AIR 1949 Mad. (sic)" that any Judge/Court subordinate to this Court cannot make any reference to this Court for any instruction as to what he should do and the Judge/Court should decide the matter by himself. Subsequently, a single Bench of Karachi High Court in a case titled "Abdul Ghafoor Magsi," District and Sessions Judge Gotki 1998 PCr.LJ 1377 followed the dictum supra and observed that Sections 432 and 433 of Criminal Procedure Code which empowered subordinate Judge/Court to send a reference to this Court for soliciting instructions have been omitted. Thus, Subordinate Court cannot sent any clarification/ instruction under Sections 432 and 433, Cr.P.C, consequently the subordinate Judge/Court should decide the matter by himself keeping in view the relevant provision of law as well as newly created situation.
6. In view of above, I would not like to give any opinion on the reference sent by District Criminal Court Rawalakot on the question whether the period consumed due to Covid-19 pandemic shall be considered as consumed by the prosecution or the accused. In view of above discussion law, the Court below shall decide the same question by itself. Thus, the reference stands answered in the manner discussed above.