ABDUL RAFIQ Alias QASSU Versus THE STATE

Cr. Transfer Application No. 17 of 1994, decided on 27th June, 1994.

ORDERABDUL RAHIM KAZI, J.- This application has been moved by the present applicant under section 526 Cr.P.C, read with section 561-a Cr.P.C, with the prayer that the order dated 28-2-1994 passed by the Sessions Judge, Karachi (East) in Cr. Transfer Application No.01 of 1994 be set aside and the application for grant of bail before arrest be transferred to the Court of Sessions Judge, Karachi (East) from the Court of V additional Sessions Judge, Karachi (East). The main ground unged by the learned counsel for the applicant is that the order transferring the application for bail before arrest by the Sessions Judge to the Court of Vth-Additional Sessions Judge, Karachi (East) is contrary to the provisions of section 17(4) of Criminal Procedure Code. The learned counsel for the applicant has argued that there is no provision of transfer of an application for bail before arrest from the Court of Sessions Judge;, and that as provided in section 498 Cr.P.C., it is only the Sessions Judge who can hear an application for bail before arrest. He further argued that a Sessions Judge can order the transfer of such application to the Court of Additional Sessions Judge under section 17(4) Cr.P.C, in the cases where he is incapable of hearing the application or where he is unavoidably absent, he has placed reliance on the following cases;

(1)Noor Muhammad vs Shakiluddin (1984 Pak. Cr.LJ.-2161) (2) Niaz Muhammad vs The State (1984 Pak. Cr.LJ. 2676) (3) Haji Misri vs The State (1968 Pak. Cr.P J. 1467) (4) Mupal vs Ghulam & others (P.L.D. 1953 Lahore 110)

2.As against this Mr Azizur Rahman, the learned counsel appearing for the State has opposed this application and has submitted that the Court of Additional Sessions Judge is very much a Court of Sessions within the Sessions Division and Additional Sessions Judge is competent to hear such bail application if assigned to him by the Sessions Judge as provided under section 17(4) Cr.P.C, ans section 193(2) Cr.P.C.

3.I have given anxious consideration to the submissions made by the learned counsel for the parties and have examined the case law cited by them. It would be pertinent to reproduce the relevant provisions of Criminal Produce Code are as under;

Section 9. Court of Sessions(1) (3) The Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts." Sections

17. Sub-ordination of Magistrates and Benches to District Magistrate.-

(1).......................................................... (3) 'Subordination of Assistant Sessions Judges to Sessions Judges: All Assistant Sessions Judges shall be subordinate to the Sessions Judge in wliose Court they exercise jurisdiction and he may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.

(4)The Sessions Judge may also, when he Himself is unavoidable absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Sessions Judge, by the District Magistrate and such Judge or Magistrate shall have injurisdiction to deal with any such application." Section 193. Cognizance of offence by Courts of Sessional) (2) Additional Session Judge and Assistant Session Judges shall try such case 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." Section 498. Power to direct admission to bail of reduction of bail: The amount of every bond executed under this Chapter shall be the fixed with due regard to the circumstances of the case, and shall not be excessive: and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced." The perusal of the above provisions would show that section 9(3) Cr.P.C, provides that a Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. Section 17(3) Cr.P.C, provides that all Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. Similarly, sub- section(4) of section 17 Cr.P.C, provides that the Sessions Judge may also, when he is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge. As provided in section 9(1) Cr.P.C, the Provincial Government shall establish a Court of Sessions in every Sessions Division. The Province is divided in Sessions Divisions as provided in section 7 Cr.P.C, and then in every Sessions Division the Provincial Government shall appoint Additional Sessions Judges and Assistant Sessions Judges to perform the duties or hear and try the cases which are transferred to them by general or special order by the Provincial Government or the Sessions Judge as provided in section 193(2) Cr.P.C. In the above referred to case of Mupal vs Ghulam and others (P.L.D. 1953 Lahore 110) Justice Muhammad Munir, the Chief Justice of the Lahore High Court (as his Lordship then was) had held that an Additional Sessions judge is not a Court of Sessions voder section 498 Cr.P.C, unless so declared by Government notification or where the Sessions Judge by a general or special order assigns any application to him. This case is very much similar to the present case. Also in case of ALLAH DAD vs THE STATE (1988 Pak. Cr.LJ. 350) Justice Naimuddin, Chief Justice of Sindh High Court (as his Lordship then was) has held that Court , of Sessions judge, Additional Sessions judge and Assistant Sessions Judge are all Courts of Sessions and only limitation in exercise of jurisdiction was that Assistant Sessions Judge could not pass a sentence of death or imprisonment for term exceeding seven years. In the same case his lordship has dealt with the provisions of section 9 and 17 of the Criminal Procedure Code, and had considered all these provisions. The cumulative effect of the provisions of section 9(3), 17(4) and 193(2) Cr.P.C, is that the Court of Additional Sessions Judge and Assistant Sessions Judge are also the Court of Sessions for the purposes of Sessions Division within the jurisdiction of which they exercise powers invested in them. The only limitation being that an Assistant Sessions Judge cannot pass sentence of death or imprisonment beyond seven years. The second limitation is that these Courts of Additional or Assistant Sessions Judges are not the Courts of original jurisdiction or even the Courts which may receive cases under section 190 Cr.P.C, but they can try only those cases or applications which are assigned to them by the Provincial Government or the Sessions Judge through a general or special order. In the two cases cited by the learned counsel as stated at Nos.1 & 2 above, the only point dialated upon was the provisions of section 17(4) Cr.P.C, but the provisions of section 193(2) Cr.P.C, and section 498 Cr.P.C., were not dialated upon. In the case of AHJI MISRI vs THE STATE (1968 Pak.Cr.LJ. 1463) a Division Bench of this Court has been pleased to dis-aUow the plea raised by the applicant that application for cancellation of bail made to Sessions Judge could not have been transferred to the Additional Session who had ultimately cancelled the bail of accused.

4.There is another aspect of the case. The learned counsel for the applicant has vehemently argued that a bail application is not a case and, therefore, the same could not have been transferred by the Sessions Judge to the Additional Sessions Judge. He has laid much emphasis on the provisions of section 498 Cr.P.C. Now the bail after arrest is granted under the provisions of section 497 Cr.P.C, while the case of bail before arrest would fall within the powers invested under section 498 Cr.P.C, which authorises only the High Court or Court of Sessions to grant such bail. The word used in section 498 Cr.P.C, is 'CASE'.

From this the learned counsel has submitted that a bail application is not a case. Be that as it may, if this contention of the learned counsel is to be accepted than the two Courts mentioned in section 498 Cr.P.C, would not be competent to grant bail before arrest unless a case is challanad in the Court whereas a man becomes entitled to move for such bail as soon as FIR is registered. The order passed on a bail application is a judicial order. The word 'CASE' is a very were term which would include all the Misc.Applications moved in a case on which a judicial order is to be passed. In the case of HAJI KARAMAT ALI PANDAT vs SAADAT ALI alias SHAHADAT ALI & OTHERS [7(1955) D.L.R351] it was held that word 'Case' as used in section 192 Cr.P.C, is were enough to include a case under section 133 Cr.P.C.

5.From the above discussion it can safely be concluded that the Court of Assistant Sessions Judge\Addltional Sessions Judge and Sessions Judge are but one Court exercising jurisdiction in the same Sessions Division a and as observed above, the only limitation is that the Additional or Assistant Sessions Judge can hear and try any those cases which are assigned to them by a general or special order of Provincial Government or Sessions Judge. It may further be obserbed that an order passed on a bail application is an order amounting to case decided. The Sessions Judge is competent under section 17(4) or under Section 193(2) Cr.P.C, to assign such application to the Additional Sessions Judges, However, the restriction with regard to the exercise of powers by the Assistant Sessions Judge are that he could hear or try such cases or applications in such cases where he can pass sentence of imprisonment extending to seven years.

In view of above discussion, the present transfer application has no merit and is accordingly dismissed.