MUHAMMAD Versus The STATE

As a result of occurrence having taken place on 25‑5‑1965, the police challaned the present petitioners under section 302/ 07, 148/49, P. P. C. The commitment proceedings were conducted by the Magistrate 1st Class, Minchinabad, District Bahawalnagar who vide order dated 31‑10‑1961, discharged the accused persons under section 209, Cir. C. P. by observing as under :‑‑‑

"The perusal of the prosecution evidence leaves no doubt in my mind that there are no reasonable grounds found in prosecution evidence to form a prima facie case against the accused and no Court can reasonably convict them. It will be a sheer waste of time of the Court of Session and of unnecessary expenditure upon the State. I have no alternative but to discharge the accused as no case has been established against them for committing them for trial to the Court of Session. 1, therefore, discharge them under section 209. Cr.. P. C. As all the accused are already on bail from the Court of Session, they are discharged from the bail bonds. The gun P. 7 and licence Exh. P. L./I. be restored to Shamas Din accused when the period for revision is over."

2. Fateh Muhammad, father of Muhammad Tufail deceased, filed a revision petition before the Additional Sessions Judge. Bahawalnagar. At the relevant time Syed Sajjad Ali shah was working as Additional Sessions Judge at Bahawalnagar. He entertained this revision petition which remained pending before him for some time. On 16‑4‑1969 arguments of the parties were concluded and the case was adjourned to 2 a‑4‑t 969 for order. On 3‑4‑69 the presiding officer remained busy with other work and therefore could not dictate the judgment and adjourned this case to 25‑4‑1969. On 24‑4‑1969 the parties filed their written arguments and the case was again adjourned to 28-5-1969 for perusal of written arguments and for pronouncement of order. Meanwhile Syed Sajiad Ali Shah the presiding officer was transferred to Rahimyar Khan and handed over the charge at Bhawalnagar on 25‑4‑1969. He was succeeded by Ch. Muhammad Sharif who took charge of this Division on 26‑4‑1969. On 28‑5-1969 he passed the following order requesting his predecessor Mr. Sajjad Ali shah, Sessions Judge Rahimyar Khan to write the judgment and to send the same to him for its pronouncement:‑

"I have perused the earlier orders of my learned predecessor. He was pleased to hear arguments of the learned A. P. P. on 16‑4‑1969. According to his direction the parties filed the written arguments on the same date. The petition was adjourned for the pronouncement of order on 23‑4‑1969. On the same date the petition was procrastinated due to some other engagements of my learned predecessor. He could not find time to dictate the judgment. This petition was again adjourned to 28‑5‑69 for the perusal of the written arguments and the pronouncement of order. It is not a petition in respect of the rehearing of arguments on some point or the other because my learned predecessor had obtained written arguments from the parties which are on the file. If I pronounce judgment in this petition, I shall be transgressing my lawful limits, and it shall also be in violation of the High Court Rules & Orders. The file may be despatched to Syed Sajjad Ali Shah my learned predecessor who is now Sessions Judge, Rahimyar khan. He may be requested to write a judgment and send it to me for its pronouncement as early as convenient."

Accordingly Mr. Sajjad Ali Shah Sessions Judge, Rahimyar khan wrote the impugned judgment dated 3‑7‑1969 at Rahimyar khan by which he set aside the order of discharge. dated 31‑10‑1957 passed by the Inquiry Magistrate and ordered that the accused be arrested and committed for trial on char s framed by him separately. The trial was ordered to proceed in the Girt of Session at Bahawalnagar on the dates to be fixed by the Additional Sessions Judge, Bahawalnagar. The learned Sessions Judge, Rahimyar khan vide D.O. No. 1569 dated 5‑7‑1969 sent this judgment dated 3‑7‑1969 alongwith the charge‑sheet and the record of the revision petition, to the Additional Sessions Judge, Bahawalnagar. Against this impugned judgment dated 3‑i‑1969 the present revision petition was filed before this Court which was admitted to regular hearing on c.‑11‑69 and further proceed ings before tine lower Court were stayed. Mr. Asghar Ali Bhatti, learned counsel for the petitioners, points out that during tree pendency of the present petition, one of the petitioners, namely Haji Muhammad has died. To the extent of this accused‑petitioner the case therefore stands abated.

3. The main points which fall for determination in this case are:‑

(a) Whether the Sessions Judge of one Sessions Division is competent to transfer a case from his division to the Court of Sessions Judge of another Division, and

(b) Whether a Sessions Judge would have jurisdiction to hear a case relating to another Sessions Division after his transfer from that Division.

As mentioned above, Syed Sajjad Ali Shah while posted at Bahawalnagar as Additional Sessions Judge had heard the arguments in the revision petition, but before he could dictate and pronounce the judgment, he was transferred to Rahimyarkhan as sessions Judge. He was succeeded by Ch. Muhammad Sharif at Bahawalnagar. Mr. Muhammad Sharif sent the file of this case to his predecessor Mr. Sajjad Ali Shah at Rahimyarkhan to write the judgement and sent the same to him for its pronouncement. In this back ground the first question which arises for consideration is whether Ch. Muhammad Sharif as Additional Sessions Judge, Bahawalnagar, was competent to transfer the present case to his predecessor Mr. Saijad Ali Shah at Rahimyarkhan. Mr. Muhammad Aslam, the learned State counsel, has not been able to point out any provision of law under which a Sessions Judge of one Division can transfer a case from his Division to another Division. On the ether hand, I find that under the law it is the High Court alone which is competent to transfer a case from one Sessions Division another Sessions Division. In the absence of any provision of law, authorising one Sessions Judge, transferring the case from tits Division to another Sessions Division, the order of Mr. Muhammad Sharif, Additional Sessions Judge, Bahawalnagar transferring the instant case to the Sessions Judge, Rahimyarkhan is clearly without lawful authority. He had no power whatever to do so.

4. As regards the jurisdiction of Mr. Sajjad Ali Shah, Sessions Judge, Rahimyarkhan, after his transfer from Bahawalnagar and handing over the charge on 26‑4‑1969 to his successor there, he ceased to be Additional Sessions Judge of that Division and therefore, had become functus officio. While functioning as Sessions Judge, Rahimyarkhan, he had no territorial jurisdiction to hear or dispose of any case relating to any other Session Division. Admittedly, the instant case related to Bahawalnagar Session' Division arid consequently the Sessions Judge. Rahimyarkhan, would have no jurisdiction, to decide this case. The mere fact that he ha earlier heard the arguments of the parties at Bahawalnagar, would not confer any jurisdiction upon him after his transfer from there. Similarly, the fact that the file of this case was sent by his successor Mr. Muhammad Sharif from Bahawalnagar, would not confer any jurisdic tion upon him at Rahimyarkhan. 'I he proper course for Mr. Muhammad Sharif, Additional Sessions Judge, Bahawalnagar was to refer the case to the High Court, Lahore which in turn should have asked the Provincial Government to issue the requisite notification under Section 9 of the Criminal Procedure Code authorising Mr. Sajjad Ali Shah, Sessions Judge, Rahimyarkhan to dispose of the present case at Bahawalnagar. The Sessions Judge, Rahimyarkhan could also be appointed by the Provincial Government as Additional Sessions Judge, Bahawalnagar to exercise jurisdic tion there. It is an admitted fact that none of these things was done in this case. Considered from any angle, it is quite clear that Mr. Sajjad Ali Shah while functioning as Sessions Judge Rahimyarkhan had no jurisdiction whatever to decide the instant case which related to Bahawalnagar Session Division. In this view of the matter, the impugned judgment is clearly without jurisdiction and, therefore, liable to be set aside. Accordingly. while accepting this revision petition, I quash the. impugned judgment and remit the case to the Sessions Judge, Bahawalnagar. who should dispose of the revision petition filed by Fateh Muhammad afresh in accordance with law after hearing the parties.

Petition accepted.