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Criminal Miscellaneous Petition No. 407 of 1956, decided on 14th May 1956.

S. 9 (2)-High Court may transfer case to Special Judge of another area. Held, that the High Court has the power under section 9 (2) of Pakistan Criminal Law. Amendment Act (XIX of 1948) to transfer a case pending before a Special judge appointed under the Act to the Court of any other Special judge appointed under that Act, irrespective of the fact that the judge to whom the case is transferred has ordinarily no jurisdiction in the area in which the offence was alleged to have been committed.

Section 4 (2) proviso of the Act is not repugnant to section 9 (2) and there is no question of implied repeal of section 9 (2) by section 4 (2).

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Enactments passed by different legislative bodies, separated by half a century-Whether later enactment can be judged in light of language of earlier.

Where two legislative bodies were entirely different and functioned at times separated by almost half a century, Acts passed by one which came into being later cannot be judged in the light of the language of those passed by the one that acted earlier.

It was argued that if the legislature (Legislative Assembly of Pakistan) which enacted section 6 of Act XXXVII of 1953, had intended that the High Court should retain the unlimited powers of transfer given to it by subsection (2) of section 9 of Act XIX of 1948, it would have made a provision similar to that contained in the proviso to section 178 of the Code of Criminal Procedure passed by the Legislature of joint India in 1898.

Held that, under the circumstances, section 9 (2) of Act XIX of 1948 could not be judged in the light of the language of section 178, Criminal P. C.

S. 526 Special Judge concerned in advising complainant to make initial report against accused-Case transferred.

Hamid-ud-Din for Petitioner.

Zaheer Abbas for Respondent.

Date of hearing: 8^th May 1956.

This petition for transfer by an accused person who is being tried by Mr. F. M. Khan, Special Judge, Montgomery, under section 161 of the Pakistan Penal Code, was not resisted on merits but on the ground that this Court has no jurisdiction to pass the order of transfer.

Mr. Zahir Abbas, Advocate, who appeared for the State, contended that in cases where only one Special judge is appointed for a place under the provisions of the Pakistan Criminal Law Amendment Act XIX of 1948, as amended by subsequent legislation, it is only the Provincial Govern ment which can pass an order of transfer of the case to some other Special Judge, and the High Court has no juris diction. The relevant part of section 9 of the Pakistan Criminal Law Amendment Act XIX of 1948 is in the following terms:-

"9. (1) An appeal from the judgment of a Special Judge shall lie to the highest Court, having appellate jurisdiction in the territorial limits in which the offence is tried by the Special judge, and the same Court shall have powers of revision.

(2) The aforesaid Court shall have authority to transfer any case from the Court of a Special judge to the Court of another Special Judge: Provided that notwithstanding anything contained in section 526 of the Code of Criminal Procedure, the Special judge from whose Court a transfer is desired, shall not be bound to adjourn the case, but if he rejects a request for adjournment, he shall record his reasons for doing so ".

The provision of law on which Mr. Zahir Abbas relied for his contention that this Court has no jurisdiction to transfer a case pending before a Special judge who alone has juris diction within the territorial limits of his jurisdiction, is contained in section 4 of the Pakistan Criminal Law Amend ment Act XIX of 1948, as amended by Criminal Law Amendment Act XXXVII of 1953 and the Pakistan Criminal Law (Amendment) Act IV of 1954. The relevant part of that section reads as follows:-

"A Special judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cognizance of any offence committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer.

(2) An offence shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the appropriate Government:

Provided that the appropriate Government may, by order in writing, transfer, at any stage of the trial, any case from the Court of one Special judge to the Court of any other Special judge.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law, the offences specified in the Second Schedule shall be tribal exclusively by Special judges ".

Relying on the wording of subsection (2) of section 4 of the Pakistan Criminal Law Amendment Act XIX of 1948, as it now stands, Mr. Zahir Abbas contended that because the proviso to the subsection gave power to the Provincial Government to transfer a case of the kind mentioned in the Act from the Court of one Special judge to that of another Special Judge, the inference was that the High Court could not pass such an order, and the power given to the High Court by subsection (2) of section 9 could be exercised only if two Special judges had been appointed by the appropriate Government for the area in question.

When originally enacted, the Pakistan Criminal Law Amendment Act XIX of 1948 had a different provision as its 4th section than the one reproduced in. an earlier part of this order, while subsection (2) of section 9 of Act XIX of 1948 was in precisely the same terms as at present. Mr. Zahir Abbas conceded that before the present section 4 of Act XIX of 1948 was inserted in place of the old one by section 6 of Act XXXVII of 1953, the powers of the High Court to transfer cases dealt with in the Act were unlimited but he contended that those powers were curtailed when the original section 4 underwent a change. Though ingenious, this argument has no force. The amendment of section 4 of Act XIX of 1948 by section 6 of Act XXXVII of 1953 merely resulted in Government getting power to transfer a case from the Court of one Special judge to that of another irrespective of whether or not the two Special judges had been appointed for the same or different areas, which power already vested in the High Court under subsection (2) of section 9 of Act XIX of 1948. The learned counsel for the State sought supports from the rule of implied repeal but in my view that rule had no applica tion. If the two provisions were repugnant to each other, it would have been possible to contend that as section 9 was enacted earlier, it should because of the rule of implied repeal, yield to the subsequently inserted section, but as the two sections are not irreconcilable with each other, no occasion for the application for the rule of implied repeal arises.

The learned counsel for the State also argued that if it were held that in spite of the amendment in section 4 of Act XIX of 1948, the High Court retained unlimited powers of transfer under section 9 of that Act, the result could be that after a case had been transferred by the High Court from the Court of a Special judge, it could be sent back to the same Special Judge by the Government in exercise of its powers under subsection (2) of section 4 of the Act, and as such a result could not have been contemplated by the legislature, it should be held that section 9 had been partly amended when the legislature enacted section 6 of Act XXXVII of 1953, which brought about drastic changes in section 4 of Act XIX of 1948. The result envisaged by the learned counsel for the State is possible, but the possibility of such a result is no ground for holding that the powers given to the High Court by subsection (2) of section 9 of Act XIX of 1948 had been curtailed. If a contingency mentioned by the learned counsel for the State arises-which is extremely unlikely-I have no doubt in my mind that the High Court could again pass an order which the interests of justice demanded.

The learned counsel for the State also made reference to section 178 of the Code of Criminal Procedure which, while conferring on Provincial Governments powers to direct that cases or class of cases committed for trial in any district may be tried in any Sessions Division, contained the proviso that such a direction was not to be repugnant to any direction of the High Court, and argued that if the legislature which enacted section 6 of Act XXXVII of 1953, had intended that the High Court should retain the un limited powers of transfer given to it by subsection (2) o of section 9 of Act XIX of 1948, it would have made a provision similar to that contained in the proviso to section 178 of the Code of Criminal Procedure. If the two enactments had been passed by the same legislative body, there would have been some force in this contention, but the two bodies were entirely different and functioned at times separated by almost half a century, and consequently the Acts passed by the one which came into being later cannot be judged C in the light of the language of those passed by the one that acted earlier. I hold that this Court has the power to transfer a case pending before a Special judge appointed under Act XIX of 1948 to the Court of any other Special judge appointed under that Act, irrespective of the fact A that the Judge to whom the case is transferred has ordinarily no jurisdiction in the area in which the offence was alleged to have been committed.

On the merits there is much force in the petition. One of the allegations in the petition was that the Special judge hearing the case had advised the complainant to report against the accused, and this is admitted by the Special Judge. In these circumstances a transfer of the case is called for, as the petitioner's apprehension that he may not get a fair trial in the Court of Special Judge who had taken interest in the case before it came to him for trial cannot be said to be unreasonable The case is, therefore, transferred to the Court of the Special Judge, Multan, for trial.

A. H. Petition allowed.

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