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Confirmation Case No. 13 of 1952/Criminal Appeal No. J‑112 of 1952, decided in August 1952.
, S. 526‑sludge of the Chief Court sitting with a jury to try a Sessions case under Chapter XXIII‑Whether subordinate to the Chief Court.
A Judge of the Chief Court trying a Sessions case is subordinate to the Chief Court in its appellate jurisdiction.
Haji Khudabux v, The Crown 19 S L R 309 (F. B.), The Crown v. Jiand 23 S L R 349 (F. B.) and Shewaram v. Crown 1940 I L R Kar. 249 ref.
Province of Sind v. Pir Ilahibux P L D 1952 Sind 34
, S. 526 (8) Failure to grant adjournment due‑Effect of‑Whether S. 537 Criminal P. C. can be invoked to cure such failure.
Failure on the part of a Court to grant an adjournment due under subsection 8 of section 526 vitiates further proceed ings of the Court subsequent to its failure to grant the adjournment. Proceedings after the refusal are unwarranted by law and ought to be set aside. Section 537 cannot be invoked to cure a refusal to adjourn because the Court is for bidden to try the case until the accused has had opportunity to make the intended application for transfer, for which he has given intimation, the Court cannot be said to be competent.
Panduram v. 2 he Emperor A I R 1931 Born. 411, Nathan, In re A I R 1930 Mad. 181, Lottur v. Emperor A I R 1940 All. 263, Ghularn Rasul v. The Emperor A I R 1928 Lah. 850 and Yakub v. The Crown 29 S L R 161 approved.
Kattaya v. The Emperor 49 Bom. L R 508 (P. C.) referred to.
Hafiz for Appellant.
Inamullah, Public Prosecutor for the Crown.
---In this case the appellant has been convicted in accordance with the unanimous verdict of the jury by our learned brother Muhammad Bakhsh of an offence under section 302, Pakistan P. C., and of other offences, and has been sentenced to death. The proceedings are before us by way of confirmation and appeal.
Mr. Hafeez, who appeared for the appellant at the trial, has raised the preliminary point that on 17th January 1952 during the trial he made an application under section 526, Criminal P. C., for adjournment. The learned judge rejected the application on the ground that, sitting on the Original Criminal Side in a trial by jury, he was not subordinate to the Chief Court, and therefore the provisions of subsection 8 of section 526 did not apply.
The learned Public Prosecutor argued that the case came within the provisions of subsection 9, but it is clear that it was on the 17th that the accused was gagged, and we think it obvious that the accused, though he did not mention any ground for transfer. in the application, would regard gagging as a ground for transfer, and hence it cannot be held that there had been any delay in making the application. It is also to be observed that subsection 9 requires the Sessions Judge to be of opinion that the applicant has failed without sufficient cause to take advantage of a reasonable opportunity of making his application at an earlier date. The learned Judge in this case has recorded no such opinion.
There is no doubt on the authorities that the failure on the part of a Court to grant an adjournment due under sub section 8 of section 526 vitiates further proceedings of the Court subsequent to its failure to grant the adjournment. This has been held in Panduram v. Emperor (A I R 1931 Bom. 411), following Nathan In re. (A I R 1930 Mad. 181). A single judge of the Allahabad High Court in Lottur v. Emperor (A I R 1930 All. 263), stated that the procedure described such a failure as "illegal and not a mere irregularity cured by section 537, Criminal P.C.. Similarly in Ghulam Rasul v Emperor (A I R 1928 Lah. 850), a single judge held that all the subsequent pro ceedings after the refusal are unwarranted by law and ought to be set aside. In Yakoob v. Crown (29 S L R 161), a Bench of the Judicial Commissioner's Court of Sind, set aside the subsequent pro ceedings in a sessions case where the Sessions judge had refused an adjournment which he should have granted under subsection 8 of section 526. The judgment of O'Sullivan A. J. C. dealt carefully with the question whether section 53 could be invoked to cure a refusal to adjourn, and came to the conclusion that having regard to the nature and object of section 526 (8), section 537 had no application, the proceedings being vitiated from the beginning.
The recent Privy Council case, Kottaya v. Emperor (49 Bom. L R 508). supports that view. The Court, forbidden to try the case until the accused has had opportunity to make the intended application for transfer of which he has given intimation, cannot be said to have tried the case substantially in the manner provided by the Code: for the Code has prohibited the Court from proceeding. We think, however, a more correct or precise view is that section 537 has no application because the Court was not competent. In this case section 526 took away the authority of the Court even if only temporarily, yet as effectively as section 556 deprives a judge or Magistrate, otherwise competent, of authority to try a case in which he is interested.
No authority was cited by the learned Public Prosecutor to the effect that where a Court has wrongly refused to adjourn, its action has been held curable by section 537, Criminal P. C.
The further point for determination, therefore, is whether a Judge of the Chief Court sitting with a jury to try a sessions case under Chapter XXIII is subordinate to the Chief Court for the purposes of section 526. This point arose incidentally in Emperor v. Hundraj (A I R 1944 Sind 65), but was left undecided in that case, as by Their Lordships of the Privy Council previously in Hari v. Emperor (A I R 1935 P C 122). There is no authority directly upon this question.
Originally there existed, a Sessions Court in Karachi. The Judicial Commissioner's Court was established by Act XII of 1866. Section I-A of the Act, as amended, ran as follows :‑
"The Judicial Commissioner and Additional Judicial Com missioners shall be appointed by the Local Government by whom alone they shall be liable to be suspended or removed. They shall within the District and Sessions Division of Karachi, each of them exercise all the powers of a Judge of a District Court and of a Sessions Judge, and all Regulations, Acts, notifications and rules now or hereafter in force and applying to the judge of the District Court or Sessions Judge of Karachi shall, so far as they are not incon sistent with this Actor with any notifications or rules here after duly published or made, be deemed to apply also to each Judicial Commissioner and Additional Judicial Com missioner."
After section 266, Criminal P. C., was amended so as to include in the expression "High Court" the Court of the Judicial Commissioner of Sind, the question arose whether appeal still lay to the Judicial Commissioner's Court on its Criminal Appellate Side from convictions recorded by a judge sitting with a jury. In Haji Khudabux v. Crown (1), a Full Bench of five judges unanimously held that appeal lay. They held, as it was put by Kinkaid J. C., that the procedure in all sessions trials is similar to that of the Bombay High Court, but that the Judicial Commissioner's Court remained a sessions Court as before, and hence the accused retained their right of appeal. In that case the question whether a judge could make a reference under section 307 was considered, but not decided : this question arose in Crown v. Jiand (2), and was considered by a Full Bench of four judges. Two held that the previous Full Bench case was not an authority for the proposi tion that the procedure of the Judicial Commissioner's Court when trying sessions cases should be that of a High Court, and that in so far as the judges in the previous case observed that this was the case, that observation was obiter. The two other judges held that the Court was a Sessions Court, but followed the procedure of a High Court. The last relevant decision is that in Shewaram v. Crown (3). The point there related to section 276, Criminal P. C, where Davis, J. C., approved the conclusion "that this Court is a Court of Sessions following the procedure of a High Court such as the Bombay High Court in criminal sessions."
After these decisions the Sind Courts Act was brought into force. The material sections 8 and 10, provide as follows:‑
"8. The Chief Court shall be the highest Civil Court of appeal and revision and the highest Court of criminal appeal and revision for Sind and the principal Civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi."
"10. (1) Notwithstanding anything in the Code of Crimi nal Procedure, 1898 (V of 1898):‑
(a) a Magistrate exercising jurisdiction in the sessions division of Karachi, when committing accused persons for trial shall commit them to the Chief Court ; and
(b) all appeals which lie under any law for the time being in force to the Court of Sessions from the sentences or orders of Courts or Magistrates exercising jurisdiction in the Sessions Division of Karachi shall lie to the Chief Court.
(2) Section 9 of the Code of Criminal Procedure, 1898 (V of 1898), shall not apply to the sessions division of Karachi.
The decision in the Full Bench case of Khudabux that appeals lie from convictions to the Chief Court has been con sistently followed. Consistently with that ruling the power of confirmation of death sentences imposed at such trials has been exercised by the Chief Court, and furthermore powers of revision have been exercised by the Chief Court in respect of orders passed by the judge performing the duties of a Sessions judge in dealing with appeals from Magistrates in Karachi.
Decisions of the Judicial Commissioner's Court, though not binding upon this Court, are entitled to great respect. Moreover, the Legislature which enacted the Sind Courts Act in 1926 presumably knew the decision in Khudabux's case. We consider it clear that section 8 does not confer upon the Chief Court any greater powers or status on its sessions side than the Court of the Judicial Commissioner exercised or enjoyed. We agree with Khudabux's case that section 266 merely affects the procedure of a Judge of the Judicial Com missioner's Court trying sessions cases and did trot confer upon him the status of a High Court. Secondly section 266 has reference only to Chapter XVIII and XXIII, and does not affect sections of the Code lying outside those Chapters.
It is to be noted that the language in the Sind Courts Act regarding civil original jurisdiction and criminal original juris diction differs, and hence the ruling in Province of Sind v. Pir Ilahibux (P L D 1952 Sind 34), that for the purposes of section 115, Civil P. C., a Single judge of this Court is not subordinate to the Chief Court, is distinguishable.
Our conclusion, therefore, is that a Judge of this Court trying a sessions case is subordinate to the Chief Court in its appellate jurisdiction.
Once it has been held that a judge trying a Sessions case is subordinate to the Chief Court, then there is provision for transfer under subsection 2 of section 526 to another criminal Court of equal jurisdiction. In this case another Court of equal jurisdiction would be any Sessions Court, either outside Karachi or, if in Karachi, to a Court presided over by another Judge of the Chief Court. Hence the application for adjourn ment was competent.
For these reasons, therefore, we set aside the conviction of the appellant under sections 417, 392 read with sections 397 and 302, Pakistan P. C., and section 19‑E of the Arms Act. We direct that the case should be retired by a Judge of this Court.
K.B.A. Conviction set aside
Retrial Ordered.
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