Find a Lawyer

Constitutional Petition No.422 of 1987, decided on 3rd June, 1987.

---Ss.9 & 178--Govrnment of Sind Notification dated 16-4-1987 Court of Session, establishment and place of sitting of--Place of sitting of Court, held, includes Central prison--Section 9, Cr.P.C. read with S.178, Cr.P.C., held, vested power in Provincial Government to appoint an Additional Sessions Judge for more than one Session Division and to authorise him to hold sitting at such place or places which it may notify--Words place or places in S. 9(2), Cr.P.C., had vide connotation as to include a Central Prison--Mere fact that Provincial Government only referred to subsection (2) of S.9, Cr.P.C., in notification and not other subsections of Ss. 9 & 178, Cr.P.C., held further, would not render said notification; as void or defectives Provincial Government possessed requisite power.

---Ss.9 & 178--Sind Government Notification dated 16-4-1987--Tria] of offence can be, held, in camera or in a prison if circumstances so warrant--Generally trials of criminal cases are to be conducted in open Court where Court concerned normally holds its sitting but in exceptional cases a trial could be held in camera or at a place other than normal Court room--An open trial, could also be held in a prison if circumstances of case so warranted.

Mairaj Muhammad Khan v. The State P L D 1978 Kar. 308; Hafeez Ahmad v. AT-he State P L D 1975 Lah. 1453; Prasanta Kumar Mukerjee v. The State A I R 1952 Cal. 91 and Lakshman Ghavji Narangikar v Emperor A 1 R 1931 Bom. 313 ref.

---Art.199--Criminal Procedure Code (V of 1898), Ss.9 & 178 Constitutional jurisdiction-- Discretionary----Exercise of such jurisdiction can be declined by High Court if facts of case and dictates of justice so demanded--Petitioner brought constitutional petition against order of Government which authorised Additional Sessions Judge to hold trial in a Central Prison--Offences in which accused allegedly involved resulted in public riots--Action of Provincial Government, held, was bona fide and also in interest of petitioner- Interference declined by High Court in constitutional jurisdiction.

Sarwar Khan for Petitioner.

Abdul Rahim Kazi Addl. A-G. for the State.

The petitioner, who was a Sub-Inspector, in Sind Reserve Police, Karachi, is involved in as many as six cases comprising of murder, zina, abduction etc. through this petition has impugned the Notification dated 16-4-1987 issued by the Provincial Government containing two parts, the first part being issued in exercise of powers conferred under subsection of Section 9 of Code of Criminal Procedure 1898 appointing Mr.A.G. Gazdar, Additional Sessions Judge, Karachi as ex officio Additional Sessions Judge for disposal of the cases mentioned therein, whereas under the second part, the Provincial Government has authorised Mr. A.G. Gazdar, Additional Sessions Judge Karachi (East) as ex officio Sessions Judge to hold sittings at the Central Prison. Karachi, for conducting the trial of the cases referred to in, Part II of the said Notification.

2. In support of the above petition Mr. Sarwar Khan, learned counsel for the petitioner has urged as follows:-

(i) That since the learned Sessions Judge Karachi West had taken cognizance in Criminal Case No.127 of 1987, which was under section 364/302/34, P.P.C. read with Section 10, Zina Enforcement of Hudood Ordinance, 1979 in respect of FIR No.22 of 1987 of P.S. North Karachi, the Provincial Government could not appoint Mr. A.G. Gazdar as ex officio Additional Sessions Judge for the disposal of the said case and the other cases.

(ii) That the Provincial Government has no power to order the trial of various cases falling within the jurisdiction of different Courts by Mr. A.G. Gazdar and to fix the venue for trial at Central Prison Karachi in violation of Section 352, Cr.P.C.

On the other hand Mr. Abdul Rahim Kazi, learned Additional Advocate General, on Court Notice has submitted as follows:

(i) That under Section 9 of the Code of Criminal Procedure the Provincial Government was competent to issue the impugned Notification.

(ii) That in view of the sensitive nature of the cases in which the applicant was involved which resulted into riots in Karachi, the act of the Provincial Government of authorise Mr. A. G. Gazdar to hold 'trial at Central Prison Karachi is bona fide, and in fact is in the interest of the petitioner himself who might have been exposed to violence had he been tried in different Courts outside the prison.

3. In order to appreciate the respective contentions of the parties, it may be pertinent to reproduce hereinbelow Section 9, Cr.P.C. which reads as follows:

9. Court of Session: (1) The Provincial Government shall establish a Court of Session for every sessions division, and appoint a Judge of such Court.

(2) The Provincial Government may, by general or special-order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but, until such order is made, Courts of Session shall hold their sitting as heretofore.

(3) The Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.

(4) A Sessions Judge of one sessions division may be appointed by the Provincial Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Provincial Government may direct.

(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act."

A perusal of the above section indicates that the Provincial Government is to establish a Court of Session for every sessions division and to appoint a Judge for such Court. It further authorises the Provincial Government either by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting and in the absence of such directions the Courts of Sessions are to hold sitting as heretofore.

It may also be noticed that the Provincial Government has also been empowered to appoint Additional Sessions Judges and Assistant

Sessions Judges to exercise jurisdiction in one or more such Courts It also empowers the Provincial Government to appoint a Sessions Judge of one sessions division as Additional Sessions Judge of another division and to prescribe the place or places where they have to hold the sitting.

Mr. Abdul Rahim Kazi, learned Additional Advocate-General has referred to Section 178, Cr.P.C. which provides as follows:-

178. Power to order cases to be tried in different sessions division.--Notwithstanding anything contained in Section 177, the Provincial Government may direct that any cases or class of cases in any district sent for trial to a Sessions may be tried in any Sessions division:

Provided that such direction is not repugnant to any direction previously issued by the High Court under Section 526 of this Code or any other law for the time being in force."

A plain reading of the above section indicates that it confers power on the Provincial Government to 'direct any cases or class of cases in any district sent for trial to a Court of Sessions may be tried in any Sessions division.

In our view, the above section 9 read with section 178, C.T.P.C, contain the requisite power in favour of the Provincial Government to appoint an Additional Sessions Judge for more than one session division and to authorize him to hold sitting at such place or places which it may notify. The words "place or places" have wide connotation as to include a central prison.

It may be observed that merely the fact that the Provincial Government has referred to subsection (2) of section (9), Cr.P.C.1 in the Notification and not the other subsections of Section 9 and 1 Section 178, Cr.P.C. will not render the above Notification as void or defective if the Pro4incial Government possesses of the requisite power.

As regards the second submission of Mr. Sarwar Khan, it may be observed that in furtherance of his above submission he has referred to Section 352, Cr.P.C. which provides, that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them subject to the proviso that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage or any inquiry into, or trial of any particular case, that the public generally, or any particular person shall not have access to, or be or remain in, the room or building used by the Court. He has also referred to the following cases:

(1) Mairaj Muhammad Khan v. The State, reported in P L D 1978 Karachi 308, in which a Division Bench of this Court while T Section 352, Cr.P.C. and Rules 42 and 49 of the Defence of Pakistan Rules, 1971 held that the trial in camera was not warranted of the accused who was a politician of stature and who had alleged political victimization in the form of prosecution for the offence.

(2) Hafeez Ahmad v. State, reported in P L D 1975 Lah.1453. In the above case a learned Single Judge of the Lahore High Court held that Section 352, Cr.P.C. read with High Court Rules and Orders holding of a criminal trial at place other than Magistrate's court room falls within exclusive jurisdiction of the Magistrate himself. ,

(3) Prasanta Kumar Mukerjee v. The State, reported in A I R (39) 1952 Calcutta 91, in which a Division Bench of the Calcutta High Court while construing section 352, Cr.P.C. held that the ordinary rule is that trials are to be held in Open Court. While there is nothing in law to prevent a Magistrate from holding open Court inside a jail, wide discretion being given to the Magistrate by the above Section.

(4) Lakshman Ghavji Narangikar v. Emperor, reported in A.I.R.1931 Bombay 313. In the above case a Division Bench of the Bombay High Court while construing Section 526, Cr.P.C. 'held that the power to transfer a case from one Court to another under the above section vested in the High Court and cannot to interfered by the Local Government. The abovequoted judgments indicate that the Courts lean toward open trial in a Court room and that generally it is for the Presiding Officer of the trial Court to fix the venue if he wishes to hold trial at a place other than an open Courtroom.

We are inclined to hold that generally the trials of the criminal cases is to be conducted in open Court where the Court concerned normally holds its sitting. But in exceptional case a trial can be held in camera or at a place other than the normal Court room. An open trial can also be held in a prison if the circumstances of the case, so warrant.

Another aspect which may be considered is that the petitioner) has invoked constitutional jurisdiction of this Court, which is discretionary and can be declined if the facts of the case and dictates of justice so demand. It is a matter of public knowledge in Karachi that the commission of murders of two sisters after the alleged commission of rape and murder of their father in which the petitioner is allegedly involved resulted into public riots and, therefore, the action of the Provincial Government, prima facie seems to be bona fide and is also in the interest of the petitioner as contended by the learned Additional Advocate-General. It is, therefore, not a fit case in which this Court should press into service the constitutional jurisdiction.

The petition is, therefore, dismissed in limine.

M.Y.H./S-105/K Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.