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Criminal Miscellaneous Application No. 857 of 1982, decided on 23rd November, 1982.

‑‑‑--S. 17(3)‑Assistant Sessions Judge‑Jurisdiction‑Assistant Ses sions Judge, held, has no original jurisdiction ‑ Jurisdiction of Assistant Sessions Judge dependant upon what Sessions Judge devises for him‑Sessions Judge can withdraw any case that may be pending before Assistant Sessions Judge.‑[Jurisdiction].

----Ss 17(3) & 435‑Court of Assistant Sessions Judge, held, inferior to Court of Sessions Judge whether it be presided over by Sessions Judge himself or by Additional Sessions Judge.

Abdul Hafeez v. The State P L D 1981 S t , 352 and Municipal Board, Bijnor v. Bhimsingh A I R 1962 All. 450 ref.

Fida Muhammad Paracha and 3 others v, The State and another 1972 P Cr. L J 951 ref.

Sikandar Ali Abdullah for Petitioner.

Sayeed A. Shaikh, A.‑G. on Court's Notice.

Muhammad Hayat Junejo : Amicus curiae.

---A revision application was placed before one of us. The said application arose out of a criminal trial, which was pending before the 2nd Assistant Sessions Judge, Karachi. It seems that this trial has been pending since 1972. So that it had successively come before several Assistant Sessions Judges. On, or, before 27th November, 1980, the Court of the 2nd Assistant Sessions Judge, Karachi, was presided over by Mr. Rajaldas G. Basavani. The accused trade an application, seeking de novo trial within the scope of section 350, Cr. P. C. This section has been recently amended, so that the rigour originally entitled by section 350, Cr. P. C. in regard to necessity of all the witnesses has been softened. Mr. Rajaldar G. Basavani considered several authorities on the point of desirability, or, otherwise of a de novo trial, and, by an order, dated 27th November, 1980, rejected the prayer for a de novo trial on the ground that it was not necessary, because the case had been registered in 1972. After some‑time, Mr. Rajaldas G. Basawani was also transferred, and the same court came to be presided over by Mr. Syed Ekram Hussain Jafri. Despite the rejection of the first application for de novo trial, the request was repeated before the successor Judge. The learned Judge, by an order, dated 8th April, 1982, allowed this application, and directed that the trial shall proceed de novo. Aggrieved by such order, the complai nant Abdur Rauf, filed a Revision Application in the Court of Sessions against the order of the Assistant Sessions Judge. This Revision Applica tion was heard by Mr. Ghulam Noman Sheikh 8th Additional Sessions judge, Karachi, who, by an order, dated 17th August, 1982, allowed the Revision Application and set aside the earlier order passed by Mr. Syed Ekram Hussain Jafri.

The prominent point, that Mr. Sikandar Ali Abdullah raised before one of us at the time of admission of the present Revision Application, was that the 8th Additional Sessions Judge, Karachi, could not exercise revisional jurisdiction under section 435, Cr. P. C. in respect of cases, or, matters pending, or, decided by an Assistant Sessions Judge. The argument was mainly based on the ground that under section 435, Cr. Pr. C., the revisional Court can exercise jurisdiction in respect of cases, which are pending, or, have been decided by an inferior Court. It was contended that an Assistant Sessions Judge was not an inferior Court qua the Court of Sessions, or, an Additional Sessions Judge. It seemed that the learned Advocate, while arguing this point, was not aware of the correct position in law, and made a statement that there was no decided case on the same point. One of us, therefore, thought that this was a matter in which an authoritative pronouncement was necessary. This special Bench was, therefore, constituted to consider that question.

Both the learned Advocate‑General and Mr. Muhammad Hayat Junejo have placed a few cases before us, and also invited our attention to the provisions of section 17 of the Code of Criminal Procedure. Sub section (3) of section 17 of the Code of Criminal Procedure is titled as "subordination of Assistant Sessions Judges to Sessions Judge." The said provision reads as follows :‑

All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose 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.

It would appear that the Code itself lays down that the Assistant Sessions Judges shall be subordinate to the Sessions Judge of the district within which they exercise jurisdiction, and additionally it is provided by the said provision that, from time to time, the Sessions Judge shall and can frame rules in regard to distribution of business among the Assistant Sessions Judges also. It would, therefore, appear that an Assistant Sessions Judge has no original jurisdiction whatsoever and his jurisdiction will depend upon what the Sessions Judge devises for him, and conversely the Sessions Judge can withdraw any case that may be pending before an Assistant Sessions Judge.

Mr. Muhammad Hayat Junejo has additionally placed before us the judgment in the case of Abdul Hafeez v. The State (l) decided by the Supreme Court. In this case, the Court, whose order came to be (A I R 1962 All. 450) P L D 1981 S C 352 examined by the High Court, was a Drug Court. A Drug Court was generally presided over by a sitting Judge of the High Court. A question arose, whether a Drug Court was an inferior Court qua the High Court within the meaning of section 435, Cr. P. C. The Honourable Judges, who came to deal with this matter in the Supreme Court, con sidered the import of the expression "inferior", and arrived at the conclusion that, since an appeal against a judgment, or, order of a Drug Court lay before the High Court, the former was an inferior Court qua the High Court within the meaning of section 435, Cr. P. C. It would be profitable to reproduce the relevant passage appearing in the judgment, which reads as follows :‑

The epithet "inferior" seems to have been used simply in order to avoid the use of subordinate on account of the special limitation of the latter word which would prevent the superior Court from looking into certain cases arising beyond the line of subordination' to it, which yet might property be examined for the purpose of an order under sections 435 and 437 or reference under sections 438, and then by High Court under section 439. It is to keep the hands of the High Court quite free in dealing with a case in its ultimate stage of revision etc. that expression "inferior" has been substituted for the word subordinate'. In that context, therefore, when in the manner aforesaid, a Drug Court has begin made subject to appellate jurisdiction of the High Court and in that sense inferior to the High Court, the latter could exercise revisional jurisdiction against its order and pro ceedings as laid down in section 435/439, Cr. P. C. In other words once having made the Drug Court, in that manner judicially inferior to the High Court, there was no necessity of duplicating the matter over again by expressly providing for a revisional jurisdiction of the High Court; because, the same already inhered in the status and position in which the Drug Court stood to the High Court. It is well settled that an appeal is a complaint to a superior body of any injustice done or error committed by an inferior one with a view to its reversion or correction etc. From that point of view also the Drug Court being subject to the appellate jurisdiction of the High Court is an inferior criminal Court whose orders and proceedings will be revisable by it under section 435.

A case from the Indian jurisdiction has also been referred to by Mr. Muhammad Hayat Junejo, and this case is Municipal Board, Bijnor v. Bhimsingh, decided by a learned Single Judge of the Allahabad High Court (1). At placitum 'A' of the Report, the opening words are that an Assistant Sessions Judge is subordinate to the Sessions Judge and consequently. for the exercise of revisional jurisdiction, the Court of an Assistant Sessions Judge is an inferior Criminal Court and the Sessions Judge can entertain Revisions against the order of the Assistant Sessions Judge, even though the Assistant Sessions Judge may have passed such orders in the exercise of appellate jurisdiction. The words are indeed wide, and the recognition of authority is total. Mr. Muhammad Hayat Junejo has also placed before us the case of Fida Muhammad Paracha and 3 others v. The State and another (1972 P Cr. L J 951) decided by late Chief Justice Tufail Ali A. Rehman. In this case, the point was not directly decided, but it would appear from the trend of the judgment that the learned Chief Justice was of the view that the mere fact of an appeal lying before the High Court would not make the Tribunal under the Foreign Exchange Regulations Act a Court inferior to the High Court. We are informed by Mr. Muhammad Hayat Junejo that this decision of the late learned Chief Justice has been reversed by a, D. B. Be that as it may, the Supreme Court has distinctly taken a contrary view.

We are of the view that one of the main factors, which needs con sideration in deciding questions of this nature is the venue of appeal. Normally, it can be said that the Court hearing an appeal against an order, or, judgment of another Court should be con sidered to be superior to that Court, and the concept of inferiority of Courts, as mentioned in section 435, Cr. P. C. can be decided on that rationales. In the present case also an Assistant Sessions Judge has to depend on the distribution of work that has to be done by the Sessions Judge, and appeals against the judgments of the Assistant Sessions Judge also lie to the Court of Sessions. For these reasons, we are of the view that the Court of an Assistant Sessions Judge, is inferior to the court of a Sessions Judge, whether it be presided over by the Sessions Judge himself, or, by an Additional Sessions Judge.

This case will now be laid for Katcha Peshi before a Single Judge. We record our thanks to Mr. Muhammad Hayat Junejo, and Mr. Sayeed, A. Shaikh, Advocate‑General.

Order accordingly.

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