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Criminal Revision No. 81 of 1982, decided on 1st December, 1982.

-------S. 528 read with S. 526-Criminal case, transfer of-Contention that under S. 528, Cr. P.C. Session Judge having no powers to trans fer a case from Court of a Magistrate to Court of an Additional Sessions Judge----Contention, held, correct-Accused, petitioner facing trial before two different courts for offences allegedly committed during same occurrence-Cases pending trial before Magistrate also transferred to Court of Additional Sessions Judge already seized with complaint case, in exercise of High Court's powers under S. 526, Cr. P.C.

Malik Muhammad Rafiq for Petitioner.

Zia Husain for the State.

M. Bilal for Respondent No. 2.

Date of hearing :1st December, 1982.

The facts giving rise to this petition for revision are that on 8th June, 1981 a case under sections 147, 148 and 379/109, P. P. C. was registered at Police Station Sadar Jhelum on the report of Muhammad Bashir, respon dent No. 2. Section 325, P. P. C. was subsequently added. After the investigation, two challans were submitted in the Court of Illaqa Magistrate, Jhelum, one against Ghazanfar Hassan and 12 others, including Muhammad Rashid, under sections 147, 148, 379, 411 and 325/109, P. P. C. and the other only against Muhammad Rashid under section 379/411, P. P. C.

2. Dissatisfied with the conduct of the investigating agency, the complainant (respondent No. 2 herein) filed a complaint under Article 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and sections 147, 148 and 325/109, P. P. C. in the Court of Illaqa Magistrate who sent it to the Sessions Court under subsection (3) of section 190, Cr. P. C. The learned Sessions Judge, Jhelum, transferred this complaint case to the Court of the learned Additional Sessions Judge, Jhelum. The complainant (respondent No. 2) made an application presumably under section 528, Cr. P. C. before the learned Sessions. Judge for the transfer of the challan cases from the Court of the Illaqa Magistrate to the Court of the Additional Sessions Judge. By order, dated 3rd May, 1982, the learned Sessions Judge allowed the application and transferred "the case pending in the Court of A. D. C. -(G)" to the Court of Additional Sessions Judge, Jhelum, who was seized of the complaint case. Although the order refers to one case only but I aim informed by the learned counsel far the parties that actually both the challan cases were transferred to the Court of the learned Additional Sessions Judge.

3. The learned counsel for the petitioner contends that under section 528, Cr. P. C. the learned Sessions Judge had no power to transfer a case from the Court of a Magistrate to the Court of the Additional Sessions Judge. The learned counsel for the complainant and the State concede in this legal proposition, but it is submitted by them that since the Illaqa Magistrate has no jurisdiction to try a case under Article 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, therefore, in the interest of justice this Court may transfer the challan cases from the Court of the Illaqa Magistrate to the Court of the Additional Session Judge, Jhelum, in exercise of its powers under section 526, Cr. P. C.

4. Through this petition it is prayed that the impugned order, dated 3rd May, 1982, be set aside. If that is done without passing any order under section 526, Cr. P. C., the result would be that the accused will face trial before two different Courts for the offences allegedly committed in the same occurrence, which course is not lawful. Accordingly, the impugned order is set aside and the challan cases are transferred to the Court of the learned Additional Sessions Judge under section 526, Cr. P. C. The petition stands disposed of accordingly.

Order accordingly.

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