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Writ Petition No. 472 of 1960, decided on 12th December. 1960.

‑Court of inferior jurisdiction‑Single Bench of High Court not such Court in relation to Division Bench‑Certiorari cannot issue for quashing order of Single Judge of High Court even if passed without jurisdiction‑Constitution of Pakistan (19.16), Art. 170.

No writ can be issued by the High Court to quash an order of the Court itself even if passed without jurisdiction.

A Single Bench of a High Court cannot be regarded as being an inferior or subordinate Court to a Division Bench.

Malik Firoz Khan Noon v. The State P L D 1958 S C (Pak.) 333 ; Rex v. Justices of the Central Criminal Court L T R Vol. 132, p. 666; Reg v. Bealer L T R Vol. 67, New Series 354 and Halsbury's Laws Vol. Il para. 250 ref.

Orders of Magistrate open to appeal and revision.

Section 5 (2) of the Code of Criminal Procedure lays down that offences under other laws shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure subject to any special provisions made with regard to such offences. The West Pakistan Foodstuffs (Control) Act does not contain any special provisions regarding the investigation, inquiry or trial of offences created under that Act. That being the case, the provisions of section 408 and of sections 435 to 439 of the Code of Criminal Procedure apply in the case of a conviction recorded by a Magistrate for an offence punishable under the West Pakistan Foodstuffs (Control) Act 1958.

Sheo Nandan Prasad Singh v. Emperor A I R 1918 Pat. 103 ; Banwari Gope v. Emperor A I R 1943 Pat. 18 and Hari Meah v. The State P L D 1958 Dacca 333 considered.

Raja Muhammad Anwar for Petitioner.

M. Anwar, Advocate‑General for Respondent.

Dates of hearing : 18th November 1960 and 12th December 1 960.

=In the 3rd week of June 1958, a truck bearing No. PBG 809 was caught at Sialkot while transporting sixty‑six bags of wheat from Lyallpur. It was driven by one Barkat. Two other persons were present in the truck, namely, Ahman and Sharif. Ahman was the owner of the wheat while Sharif was the cleaner. All the three ware convicted under section 6 of the West Pakistan Foodstuffs (Control) Act, 1958, and each of them sentenced to two years' rigorous imprisonment. The truck was also ordered to be confiscated. The convicted persons appealed to the Sessions Judge who reduced Ahman's sentence to one year and of Barkat and Sharif to four months' rigorous imprisonment, but maintained the order of the confiscation of the truck.

2. The truck originally belonged to two persons, named Buta and Ashiq. During the trial it remained with the owners on sapurdari on the security of Bashir Hassain and Shabir Husain. These two persons filed a revision petition in the High Court (Criminal Revision No. 293 of 196)) against the confiscation of the truck, claiming that they had purchased the truck from the real owners on 18th November 1959. This petition came up for hearing before our learned brother Ortcheson, J. on 19th April 1960 and he dismissed the same observing that "the petitioner stood surety for Muhammad Ashiq and Mahammad Buta as owners of the truck in dispute and it does not now lie in his mouth to represent himself as the real owner."

3. One of those two petitioners, namely, Bashir Husain, has now filed the present writ petition challenging the same order of the confiscation of the truck. The ground of attack are :‑

(a) that no notice was issued to the owner of the truck to show cause why the same should not be confiscated ;.

(b) that the owner was not a party to any contravention of the provisions of the West Pakistan Foodstuffs (Control) Act; and

(c) that no appeal or revision lay under the West Pakistan Foodstuffs (Control) Act and, therefore, the orders passed in the case by the Sessions Judge in appeal and the High Court in revision were a nullity and did not exist in the eye of law.

4. A preliminary objection has been taken by the learned Advocate‑General that no writ can be issued for quashing an order of the High Court and the only remedy open to the petitioner is to go up in appeal to the Supreme Court.

5. We consider that the contention raised by the learned Advocate‑General must prevail. A writ of certiorari is clearly intended to correct errors committed by tribunals of inferior jurisdiction. It cannot be invoked for quashing an order made ' by the High Court itself. In this connection reference may be made to para. 250 of Vol. II of Halsbury's Laws and one or two decided cases, namely, Rex v. Justices of the Central Criminal Court (L T R Vol. 132, p. 666) and Reg v. Bealer (L T R Vol. 67, New Series 354).

6. The relevant observations in Halsbury's Laws of England are to the following effect :‑

"The order cannot be directed by the High Court to any tribunal which is a branch of the High Court for the purpose of squashing it proceedings. * * * * * The order can only be directed to inferior Courts of record * * * * * .

7. In Reg v. Bealer it was held that there was no authority for saying that a writ of certiorari could go at all to the Central Criminal Court, which is a superior Court.

8. In Rex v. Justices of the Central Criminal Court a rule nisi had been obtained by ,the County Council for certiorari to quash an order of the 16th May 1922, passed by the Central Criminal Court, so far as it directed that the amount of income and super‑tax on the honorarium paid to an official of the Court should be paid out of public funds, on the ground that the order was ultra vires. 1t was held that as the Central Criminal Court was a superior Court, certiorari would not lie for the purpose of quashing an order made by that Court and, therefore, the rule must be discharged.

9. In the present case the final order which operates against the .petitioner is the one dated 19th April 1963 passed by Ortcheson, J. sitting as a Judge of the High Court. We cannot hold that m that capacity he pan be treated as an inferior Court to a Division Bench of the same Court. In Malik Firoz Khan Noon v. The Stets (P L D 1958 S C. (Pak.) 333

) their Lordships held that even where an appeal lies to a Division Bench of the High Court under section 411‑A against an order of conviction, etc., passed by a Single Judge of the High Court in the exercise of its original criminal jurisdiction, the Single Judge cannot be regarded as being an inferior pr subordinate Court to the Division Bench. The learned Chief Justice observe) that "the mere conferment of restricted additional appellate jurisdiction on a beach of the High Court does not have the effect of converting another bench, which exercises the original powers of the Court, a subordinate or inferior Court. * * * * The Court that functions in exercise of the original criminal jurisdiction or in exercise of the appellate jurisdiction under section 411‑A is the same Court, namely, the High Court, and not two different Courts, the respective powers possessed by the Judges while functioning in two different capacities being the powers of the same Court and the distribution of those powers being on more than an internal arrangement among the Judges of the same Court. The records of both the benches are records of the same Court and not of two different Courts." We arc, therefore, clear that no writ of certiorari can be issued for removing the order of Ortcheson, J. before us for the purpose of quashing it. For that reason the present petition must fail.

10. However, it was urged by Raja Muhammad Anwar, the learned counsel for the petitioner, that the West Pakistan Foodstuffs (Control) Act, 1958, was a special Act and the decisions of the Courts trying offences under the Act were not open to appeal‑or revision and, accordingly, any such order was completely without jurisdiction and must be treated as a nullity in the eye of law, with the result that such an order could not stand in the way of the petitioner. It was further contended that if this view were accepted; then the only order which the petitioner has to challenge is the order of the trial Court which was clearly an inferior Court and amenable to the writ jurisdiction of this Court.

11. In the first place we are of the view that the contention of the learned counsel that the Magistrate who tried the present case under the provisions of the West Pakistan Foodstuffs (Control) Act was sitting as a Special Court, not*governed by the Criminal Procedure Code, is not tenable. The Act does not contain any provision regarding the creation of any Special Courts or the appointment of any Special Magistrates to try offences under the Act. The authorities cited by the learned counsel in this behalf, namely, Sheo Nardan Prasad Singh v. Emperor (A I R 1918 Pat. 103), Banwari Gope v. Emperor (A I R 1943 Pat. 18) and Hari Meah v. The State (P L D 1958 Dacca 333) are of no avail as they deal with the position of Special Courts created under special enactments. Section 5 (2) of the Code of Criminal Procedure clearly lays down that offences under other laws shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure subject to any special provisions made with regard to such offences. It has already‑been observed that the West Pakistan C Foodstuffs (Control) Act does not contain any special provisions regarding the investigation, inquiry or trial of the offences created under that Act. That being the case, the provisions of section 408 and of sections 435 to 439 of the Code of Criminal Procedure shall apply in the case of a conviction recorded by a Magistrate for an offence punishable under the West Pakistan Foodstuffs (Control) Act, with the result that an appeal or a revision would lie in accordance with the provisions of the Criminal Procedure Code, just mentioned. The learned Sessions Judge of Sialkot was; therefore, fully competent to hear an appeal in the case and so was the learned Single Judge of the High Court to hear the revision. We cannot, therefore, hold that the appellate or the revisional orders are without jurisdiction.

12. Even if we had come to a contrary conclusion on the question of the jurisdiction of the appellate and the revisional Courts, we would still have been confronted with the position e that no writ of, certiorari lies for quashing an order of the High Court itself. The petition is, therefore, dismissed with costs.

A. H.

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