This judgment shall dispose of Writ Petition No,3173 of 2003 as well as Criminal Revision No,206 of 2003, because in both of them validity of the order dated 22-11-2003, passed by learned Sessions Judge, Chakwal in case F.I.R No,50 dated 3rd July, 2001, registered under sections 320/324/148/149 P.P.C, at Police Station Tamman, District Chakwal has been challenged and interpretation of section 9(1) Cr.P.C, on the basis of which Notification of the Government of Punjab dated 8-11-1995 has been issued, is involved.
2. Brief facts of the case are that the Writ Petition No, 3173 of 2003 is filed by Mr. Zafar Awan, Advocate, praying that all the orders passed by the learned Additional Sessions Judge, Chakwal, after 28th of October, 2003 relating to the above mentioned case F.I.R be declared void, illegal and of no legal effect. Another connected Criminal Revision No,206 of 2003 is filed by Malik Muhammad Masoom against the order dated 22-11-2003, passed by the Sessions Judge, Chakwal, whereby the afore-said case F.I.R. was withdrawn from the Court of the Additional Sessions Judge, Talagang and was made over to the Court of Additional Sessions Judge, Chakwal.
3. It is contended that Talagang has been notified as an independent Sessions District vide notification of the Government of the Punjab dated 8th November, 1995, purported to have been issued under section 9 (1) Cr.P.C., and therefore after creation of Sessions District/Civil District at Talagang, the Sessions Judge, Chakwal, may be named as Sessions Judge Headquarters for administrative purposes was not vested any jurisdiction to withdraw the case pending in the Court of Session at Talagang. Next it is argued that Circular No,7886/RHC/MIT dated 25th of May, 1999 was merely administrative in nature and it could not curtail the independence of Session District of Talagang. It was also contended that through the administrative notification, the Lahore High Court could not abridge or curtail the jurisdiction of Session District of Talagang. Next it was argued that without prejudice to the jurisdiction of the Lahore High Court to issue an administrative notification like the one dated 25th of May, 1999 such administrative notification could not nullify the effect of statutory notification purported to have been issued under section 9(1) of the Code of Criminal Procedure.
4. To resolve the controversy between the parties reading of notification, issued under section 9(1)
Cr.P.0 by the Government of the Punjab, - is necessary . Relevant parts of Notification No,SO/Judl- II)8(16)/91 dated 8-11-1995, issued by the Government of the Punjab is reproduced hereunder:- "In exercise of the powers conferred upon him under section 9(1) of the Cr.P.0 1898, the Governor of the Punjab is pleased to appoint the following Additional District & Sessions Judges/District & Sessions Judge to be the Sessions Judge in Session at the district mentioned against each with effect from the date they took over the charge as such.
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12. Mr. Shaukat Iqbal Sikka, Additional District & Sessions Judge.........Talagang 13-24 ------------------- ------------------------- In exercise of the powers conferred upon him under section 5 of the Punjab Civil Courts Ordinance, 1962 (West Pakistan Ordinance (II of 1962), the Governor of the Punjab is pleased to appoint the above mentioned Additional District & Sessions Judge/District and Sessions Judges to be the District Judge at Civil Divisions mentioned against each with effect from the date they took over the charge as such. Secretary to Government of the Punjab Home Department"
5. Under the scheme of the Criminal Procedure Code the general frame-work of the administration of justice, such as the division of the Province into Sessions Divisions and their boundaries and places of sitting, the appointment of Sessions Judges and the classification of offences into those trial-able is left under section 9. Powers of transfer of cases under section 526, Cr.P.C., for the ends of justice and for the convenience of the parties and the like in any particular case; and such a transfer of any particular case from one Court or Judge to another within this framework as fixed for the general administration of justice is a matter to be decided by this Court. Therefore the Sessions Court or this Court cannot alter the regular place of sitting of any Sessions Court, from the place directed by the Government under section 9 Cr.P.C., except by invoking jurisdiction under section 526 Cr.P.C by this Court. Under the scheme of the Code, apart from the High Court and other Courts created under other laws, there are two Courts viz. Courts of Session and Courts of Magistrates. Sub-section (1) of section 6 reads as under:-- "Classes of Criminal Courts and Magistrates.--(1) Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely:-
(i) Courts of Session:
(ii) Courts of Magistrates"
6. I will deal with the Courts of Session because the matter pertains to the said Courts. Section 9 deals with the establishment of Courts of Session and appointment of Judges in such Courts.
Section 9 reads as under:-- "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 the Courts of Session shall hold their sittings 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."
7. A bare reading of section 9 reveals that under subsection (1) the Provincial Government is required to establish a Court of Session for every Sessions Division and appoint a Judge of such Court. (The said Judge is known as Sessions Judge). Under subsection (3), which is very relevant, the Provincial Government is authorized to appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
8. Generally, Additional Sessions Judges are treated as separate Courts. The difference can very well be appreciated when we examine the Civil jurisdiction of Additional District Judge under section 3 of the Civil Courts Ordinance, 1962 a separate Court in the name of 'Court of the Additional District Judge' is created along with the Courts of District Judge and Civil Judge. The said provision reads as under:-- "3. Classes of Courts.--Besides the Courts of Small Causes established under Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:-
(a) The Court of the District Judge;
(b) The Court of the Additional District Judge; and
(c) The Court of the Civil Judge."
9. Thus for the purpose of Civil jurisdiction, the legislature has created a Court of Additional District Judge. But for the purpose of exercise of Criminal jurisdiction no Court by the name of the Court of the Additional Sessions Judge has been created under the Code. The legislature has created only one Court in the name of Court of Session.
10. From the above position, it is manifest that in a Sessions Division there is only one Court by the name of "Court of Session" which is presided over by the Sessions Judge. The Additional Sessions Judges are appointed to exercise jurisdiction in the Court of Session while deciding the Sessions cases.
11. The Sessions Court, by itself has no jurisdiction to take direct cognizance of any offence (section 193 (1)). The procedure for taking cognizance is that when a case exclusively trial-able by the Court of Session is challaned, first it is to be presented before the Court of Magistrate of First Class. The said Magistrate takes the cognizance of the offence and without recording any evidence, sends the case to the Court of Session for trial as required under section 190 (1) and (2) of the Code. The said provisions read as under:-- "190. Cognizance of offences by Magistrate.--(1) Any Magistrate of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police officer; (c)upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Session for trial.
(2) A Magistrate taking cognizance under subsection (1) of an offence trial-able exclusively by a Court of Session shall, without recording any evidence, (send the case to Court of Session for trial.)"
12. Under subsection (1) of section 193 of the Code, the Court of Session takes cognizance on two occasions. (1) When case is sent up to the Court of Session by the Magistrate under section 190(2) of the Code. (2) In special cases, when the same is expressly directed by the Code or by any other law. In the former case after receipt of the case from the Magistrate, the Court of Session is required to take cognizance and then proceed further for trial.
13. Under subsection (2) of section 193 of the Code, the Additional and Assistant Sessions Judges are barred to try Sessions cases directly. The Additional and Assistant Sessions Judges can try only such cases which the Provincial Government or the Sessions Judge of the Division, may by general or special order direct them to try or make over to them for trial. Section 193 of the Code reads as:-- "193. Cognizance of offences by Courts of Session.--(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction (unless the case has been sent to it under section 190, subsection (2).
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial."
14.Thus, it is clear that Additional and Assistant Sessions Judges have no power to try cases by themselves without the above mentioned directions of the Provincial Government or making over the cases by the Sessions Judge. The specific bar to try the cases directly by the Additional and Assistant Sessions Judges, created under the above provision clearly demonstrate the intention of legislature that without such direction and making over cases as referred to above, the said Judges cannot try the cases. Under section 9, of the Code when Additional and Assistant Sessions Judges are appointed by the Provincial Government they are appointed, only to exercise jurisdiction of the Sessions Court in a Sessions Division or more Divisions.
15.Once the Additional or Assistant Sessions Judge is posted in a Sessions Division, then the bar contained in section 193(2) of the Code, will apply to the said Judge for trial of a case or cases, unless the said bar is removed by issuing a direction or making over of a case or cases given/made by the Provincial Government or the Sessions Judge respectively. The said order will authorize only such Judge to try such case or cases, which are made over to him and for that Division only. Thus, even if the Additional or Assistant Sessions Judge is posted in any Sessions Division with the powers to exercise jurisdiction under section 6(3) of the Code in the Sessions Division, will not by itself give authority to the said officer to try a case or cases of said Division unless an order within the meaning of section 193(2) of the Code is passed by the competent authority to remove the bar contained there-under. As such for removal of such bar the order as required under section 193(2) is must whenever such Judge is posted in a Sessions. Division.
16.The Sessions Judge is authorized to distribute the business to other Additional and Assistant Sessions Judges by making over the cases to them under section 193, of the Code. Thus, it is the Sessions Judge, the Presiding Officer of the Sessions Court, that is required to try the cases, but for particular case or class of cases, he delegates his powers of trial of the cases to Additional and Assistant Sessions Judges. As such, the Sessions Judge becomes delegator and Additional and Assistant Sessions judges become delegatee. (Not strictly in real sense). In such a situation, the delegator will remain in the control of the cases, which he made over to his delegatee. 13ut a bar has been created to exercise some of the powers of the delegator in respect of cases in which charge has been framed by the Additional Sessions Judge (delegatee). Howeve, where the Additional Sessions Judge to whom such powers were delegated ceased to exercise jurisdiction in the Sessions Division, the Sessions Judge would then be in a position to exercise all powers.. The bar contained in section 528(1-A), of the Code will be to the extent of the Additional Sessions Judge who had framed the charge in the case and still posted in that Division. When the said Additional Sessions Judge is transferred the bar by itself will be removed.
17. There is procedure for hearing of cases by the Sessions or Additional Sessions Judge. After receipt of the case from the. Magistrate, the same is placed before the Presiding Officer (Sessions Judge) of the Sessions Court. The Sessions Judge after taking the cognizance within the meaning of section 193(1), of the Code sends the case to the office to be entered in the Register of Sessions cases as required by High Court Rules. The office assigns a number to the case and enters it in the said register. Thereafter the Sessions Judge either decides to try the case himself or makes it over to any Additional Sessions Judge posted in the Division to exercise jurisdiction of the Sessions Court. If Sessions Judge makes over the case to Additional Sessions Judge, such entry is made .in the Register of Sessions case against number of the said case. The Additional Sessions Judge after receipt of the case starts exercising jurisdiction of Sessions Court in that particular case only. The said Additional Sessions Judge gives no separate number to the said case. The High Court Rules do not provide any separate register for Additional Sessions Judge. The number assigned to the said case by Sessions Court would remain the same as given to it under the Register of Sessions cases kept in the office of Sessions Judge. Thus, the case would remain on the file of Sessions Court, whose Presiding Officer is Sessions Judge even if the case is made over to the Additional Sessions Judge for the simple reason that the said Additional Sessions Judge is required to simply exercise jurisdiction of the Sessions Court in respect of the said case. The case was also simply made over to the Additional Sessions Judge for the trial only. After decision of the case by the Additional Sessions Judge, the required particulars are written in the register kept in the -office of Sessions Court. Until the time the said Additional Sessions Judge is posted in the Sessions Division, the Sessions Judge has no power to recall the said case from the said Additional Sessions Judge if charge has been framed by him, as provided by section 528(1-A), of the Code because framing of the charge is first step towards the trial of the case.
18. Taking the case in hand, it is to be observed that on the strength of the Notification dated 8th November, 1995 issued under section 9(1), Cr.P.C., Talagang was created as Sessions Division and at that time Mr. Shaukat Iqbal Sikka, Additional District and Sessions Judge was appointed to be the Judge in Session at Talagang. As such the Magistrate had to forward the case to the Sessions Judge at Talagang and not to the District & Sessions Judge District Headquarters at Chakwal. If the C challan has been wrongly sent to the District Headquarters at Chakwal, then the challan has not been legally sent up on the mandate of section 190(2), Cr.P.C. In the present case the challan was not sent up by the Magistrate on the mandate of section 190(2), Cr.P.C., to the Sessions Division of Talagang. The District & Sessions Judge, Chakwal had no power to withdraw the case from the Court of Sessions Judge, Talagang, and transfer it to the Court of Mr. Sohail Nasir, Additional Sessions Judge, Chakwal.
19. For the reasons stated above this writ petition is allowed, the order dated 22-11-2003, passed by the learned Sessions Judge, Chakwal, withdrawing the case F.I.R No,50 dated 3-7-2001, Police Station Tamman from the file of Mr. Jawed Mehmood Sindhu, Additional Sessions Judge, Talagang, and transferring the same to Mr. Sohail Nasir, Additional Sessions Judge, Chakwal for disposal is declared to be without lawful authority and is set aside. The challan shall be submitted to the Magistrate, who, on the mandate of section 190 Cr.P.C., shall send it to the Court of Session Division (Additional Sessions Judge, Talagang) created under section 9(1), Cr.P.C.
20.For the same reasons the Criminal Revision is also allowed and disposed of.