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Before Shameem Hussain Kadri, Actg. C J .
ABDUL KHALIQ--Petitioner
versus
MUHAMMAD AFSAR AND 3 Others-Respondents
Criminal Miscellaneous No. 234/M of 1981, decided on 4th April, 1981
Constitution of Pakistan (1973)
-- Arts. 175 & 192 and Provisional Constitution Order, 1981, Arts. 2, 6 & 15 read with High Court (Establishment) Order, 1970 [President's Order No. 8 of 1970], Art. 3 (A), (B) & (C) [as amended by High Court (Establishment) Order (Punjab Amendment) Ordinance (I of 1981)]-Interpretation of statutes-Transfer of cases from one Division Bench to other-Jurisdiction-Benches established at different places by virtue of Art. 3(A) of High Court (Establishment) Order, 1970 and mentioned as Revisional Courts'-Not falling within definition of "High Court" mentioned in Arts. 175 & 192 of Constitution-Power to transfer cases from one Bench to other or to Principal Seat cannot be spelt out to vest in Supreme CourtChief Justice, held, continues to enjoy such powers of transfer of cases when he deems necessary to do so.-[Interpretation of statutes].
Muhammad Nagin v. Haji Nawab Khan and others P L D 1962 Lah. 722 rel.
Raja Muhammad Sabir for Petitioner.
Irshad Hassan Khan, Deputy Attorney-General and Sh. Riaz Ahmad, Advocate-General for the State.
In a number of petitions, including the present one, a question has arisen as to whether the power of transfer of cases from one Bench to the other or to the Principal Seat continues with the Chief Justice after promulgation of the Provisional Constitution Order, 1981.
2. In pursuance of the High Court (Establishment) Order (Punjab Amendment) Ordinance, 1981, the Governor of the Punjab was pleased to establish Benches at Bahawalpur, Multan and Rawalpindi. By virtue of section 3-B of the said Ordinance all proceedings relating to these Civil Divisions pending in the Lahore High Court immediately before the commencement of this Ordinance stood transferred to these Benches respectively. Under section 3-C (b) the Chief Justice of the Lahore High Court was vested with the power to transfer proceedings pending in different Benches of the Lahore High Court. Such power does not find specific mention in Article 7 of the Provisional 'Constitution Order, 1981. Notice was issued to the Deputy Attorney-General and the Advocate-General. Besides the petitioner's counsel Mr. S. M. Zafar Advocate, Mr. Irshad Hassan Khan, Deputy Attorney-General and Sh. Riaz Ahmad, AdvocateGeneral were heard.
3. It was argued that the Provisional Constitution Order, 1981 has validated all laws promulgated on or after the fifth day of July, 1977 by virtue of Article 15. The High Courts (Establishment) Order (Punjab Amendment) Ordinance, 1981 is, therefore, an existing law to the extent of its repugnancy with the Provisional Constitution Order, 1981. Article 7 deals with the Principal Seat and Benches of High Courts. It is silent about the power of transfer. Under Article 7(6) the Governor in consultation with the Chief Justice of the High Court has power to make rules regarding the assignment or the area in relation to the Benches and for all incidental, supplemental or consequential matters. No such rules have been framed so far.
4. The learned Deputy Attorney-General submitted that in the absence of the rules the power of transfer vests in the Chief Justice in view of Punjab Ordinance No. 1 of 1981.
5. In order to resolve the controversy it is necessary to trace the history of law. On 9th October, 1955 High Court of West Pakistan (Establishment) Order, 1955 was promulgated by the Governor-General and by Article 3 thereof the High Court of West Pakistan came into existence. -Article 4 of this Order conferred the following powers on the Chief Justice:
"4.--(l) The Chief Justice shall have power to make provision for all or any of the following matters, that is to say-
(a) Assigning areas to the Benches at Karachi and Peshawar in relation to which each Bench shall exercise jurisdiction vested in the High Court. .
(b) Transferring proceedings pending immediately before the commencement of this Order in
( ) the High Court of Judicature at Lahore ;
( I) the Chief Court of Sind
(iii) the Judicial Commissioner's Court in the North-West Frontier Province ;
(iv) the Judicial Commissioner's Court of Baluchistan ; and
(v) any other Court functioning as High Court in any other specified territory ; to the High Court or to a Bench at Karachi or Peshawar or to a Circuit Court, and
(c) For all matters incidental, supplemental and consequential thereto.
(2) The Chief Justice shall have power to determine what cases and what classes of cases shall be disposed of by the Judges nominated to Circuit Courts."
6. One Unit was dismembered and the Province of West Pakistan was dissolved by President's Order No. 1 of 1970. President's Order 8 of 1970 was promulgated on 16-6-1970. Article 3 of this Order created High Courts for different Provinces. The powers of the Chief Justice mentioned in Punjab Ordinance No. I of 1981 are par materia with those laid down in Article 4 of High Court of West Pakistan (Establishment) Order, 1955. The Provisional Constitution Order, 1981, is, however, silent so far as these powers are concerned.
7. Article 6 of the Provisional Constitution Order, 1981 confers power, to transfer cases from one High Court to another High Court, on the Supreme Court. Article 175 of the Constitution of Pakistan, 1973 envisages the existence of the Supreme Court of Pakistan and High Court for each Province. High Court has been defined in Article 192 as under :
"192.-(1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President."
"8. It is also urged by Mr. Mahmud Ali that the Chief Justice has no power to transfer cases from one Bench to another for the other Judges are not subordinate to him in the matter of judicial work. .It is true that the other Judges of the Court are not a subordinate Court but the power to assign cases and to transfer them from one Bench to another - can be spelt out of the statutory provisions. Section 108 (2) of the Government of India Act, 1915, empowered the Chief Justice of each High Court to determine what Judge in each case was to sit alone and what Judges of the Court with or without the Chief Justice were to constitute the several Division Courts. By section 223 of the Government of India Act, 1935, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges, including any power to make rules of Court; and to regulate the sitting of the Court and all members thereof sitting alone or in Division Courts, shall be the same as immediately before the Act and this continued the power conferred on the Chief Justice by section 108. Article 4(1)(a) of the Order expressly conferred power of the Chief Justice to assign areas to the various Benches of the High Court of West Pakistan at Karachi, Peshawar and the Circuit Courts and to make provision for all matters incidental, supplemental and consequential thereto. From these provisions must be inferred the power in the Chief Justice to transfer a case from one Bench to another. This power may also be inferred as incidental, supplemental and consequential upon the Establishment of the High Court of West Pakistan and its various Benches and Circuit Courts as necessary concomitant of the division of the Court into Benches functioning at different places. A situation can be imagined in which there may be no Judge functioning at Peshawar for reason of illness or some other reason and in such case it cannot be denied that the Chief Justice must have the power to order transfer of the pending cases to Lahore Bench to be disposed of here. It may even be that the Judges constituting a Bench at Peshawar may not like to dispose of a particular case owing to their being connected with it as counsel at its earlier stage. Does it mean that it is necessary in such a case to send a Judge or Judges to the Peshawar Bench to dispose of that case, and that it could not be transferred to Lahore and disposed of-here ( ) Mr. Mahmud Ali, learned counsel for the respondents 1 and 2, argues that if it was intended to give power to the Chief Justice. to transfer a case from one Bench to another, that power should have been specifically conferred by the Act or the Order but I see no force in this contention, as its existence may have been presumed. In view, if he has power to assign areas he has powers to transfer a case from one Bench to another as incidental, supplemental and consequential to the Benches being at different places and no express provision was necessary. I hold, therefore, that the Chief Justice has ample power to order transfer of a case from one Bench to another."
7. In fact the learned Deputy Attorney-General while conceding the existence of power' with the Chief Justice adopted the arguments mentioned in the above paragraph for resolving the difficulties envisaged therein. However, he submitted that this power may be sparingly exercised.
S. G. D. Order accordingly.
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