' Mr. Arshad Mahmood Lodhi, Advocate practising at Nowshera, District Peshawar, is facing trial in the Court of Additional Sessions Judge, Peshawar on a charge under section 379/420/424, P. P. C.
The case has been registered against him on 12-7-1979 under the said sections of law, vide F. I. R.
No, 494 of Police Station, East Cantt. On the basis of information conveyed through letter No, 2206, dated 10-7-1979, by the Registrar, Peshawar High Court to the Local Police. It was stated in the said letter that Mr. Arshad Mahmood Lodhi, Advocate after obtaining, in his capacity as Advocate, from the official of the High Court the record of a pending case did not return the same to the official concerned and instead slipped away alongwith it, thus, prima facie, committing the offence named above.
2. The case remained under investigation of the Police and after comp lotion of the investigation the challan was ready to be submitted to the Bap Magistrate, who under law was competent to try the offences mentioned in the challan, when in the meantime letter No, 2534, dated 12th August, 1979 was sent by the Assistant Registrar, Peshawar High Court to the District Magistrate Peshawar whereby the order passed by the learned Chief Justice on 9-8-1979 was conveyed. The order of the learned Chief Justice read as under : "The case is transferred from the Court of the Ilaqa Magistrate to the Sessions Court. This will be in the interests of administration of justice and fair to the accused as well, who is a practising Advocate."
' This letter was marked by District Magistrate to Ilaqa Maistrate for compliance and Mr. Haider Gul, City Magistrate, Peshawar, who was Ilaqa Magistrate, on 13-6-1979 passed the following order : "P. S. I.
Compliance immediately."
' The P. S. I. On 15-8-1979 then requested the P. I. That the case may be put in Sessions Court. It is on 13-10-1979 that the learned Sessions Judge, Peshawar passed the following order : "Complete challan received today. The case be registered. The trial shall be taken on its own turn."
' But on 30.10-1979 the learned Sessions Judge passed the following order : "Transferred to A. S. J. II, Peshawar for disposal."
' This is how the case came to be tried by the learned Additional Sessions Judge, who after taking cognizance of the matter summoned the accused to appear in his Court. The significant fact to note is that neither Mr. Haider Gul, City Magistrate, Peshawar wrote any order showing that whether or not the complete challan was put in his Court, nor the learned Sessions Judge in the order-sheet expressed as to from where the complete challan was received. Since the City Magistrate, Peshawar had on the letter of the Assistant Registrar, Peshawar High Court, referred to above, passed an order directing the Prosecution Branch to comply with the order of the Chief Justice, the case was, therefore, sent by the Prosecution Branch direct to the Court of the learned Sessions Judge. Before the case was put in the Sessions Court, an application, dated 15-7-1979, was made by the Deputy Superintendent of Police, C. I. A. To the Ilaqa Magistrate, wherein a request was made that the accused, who arrested on 14-7-1979, be remanded to Judicial lock-up for 15 days. On the reverse of this application Mr. Flakier Gul, City Magistrate, Peshawar, after noting down the presence of the accused, had passed, on 15-7-1979, an order directing that the accused be kept in Judicial lock-up for fifteen days and produced on 29-7-1979. On the day when the Ilaqa Magistrate remanded the accused to the Judicial lock-up, an application for the grant of bail was moved by the accused, which was disposed of by the llaqa Magistrate on the same day by order made in the following terms : "Mr. Noor Ahmad Khan Advocate for the accused present. Accused Arshad Lodhi Advocate also produced by the Local Police for remand. Record of the case also perused. P. S. I. For the State present. Counsel for the accused and the accused requested that as the file of the case is before the Court, therefore, the application for bail be heard today. Argument heard. ' The accused Arshad Lodhi has been arrested by the 'local police in case F. I. R, No, 497, dated 12-7-1979 under section 379/420, P. P. C. The accused petitioner is directly charged in the F. I. R. For inspecting a judicial file of a case pending in the High Court and then taking that file which was not returned. Thus a serious offence was committed by a responsible person who is an Advocate and to whom the Judicial file was entrusted for inspection. The case is still under investigation and at present there appears no reasonable ground to release the accused on bail. Hence this application stands rejected."
' The accused remained in the Judicial lock-up up to 22-7-1979 when on that day he was admitted to bail by the learned Sessions Judge, Peshawar.
3. The case was, however, not allowed by the accused to proceed further in the Sessions Court as he had filed Criminal Miscellaneous Petition No, 990 of 1979 in the High Court for the quashment of the proceedings pending against him in the Court of Additional Sessions Judge, Peshawar. That petition was admitted by the High Court on 16-3-1980 but on 16-8-1980 the same was withdrawn because the accused/petitioner had on the same day submitted before the High Court that he first wanted to move the Sessions Court under section 265-K, Cr. P. C. For his redress, and if need arose he would come to the High Court thereafter. The High Court accordingly dismissed the petition as withdrawn.
4. Having failed to obtain relief under section 265-K, Cr. P. C. From the trial Court, Mr. Arshad Mahmood. Lodhi has again come to this Court for the quashment of the proceedings pending against him before the Additional Sessions Judge, Peshawar. The main grounds on which he invokes the extraordinary jurisdiction of this Court are that the case against him was at the investigation stage when the order of transfer of the case from the Court of Ilaqa Magistrate to the Sessions Court was passed by the learned Chief Justice and consequently the complete challan was directly put in Sessions Court on 13-10-1979 in contravention of the provisions of law ; that the Sessions Court took cognizance of the case on the basis of administrative order made by the learned Chief Justice, which course was illegal and could not have been adopted ; that the transfer of the case to the Court of Sessions was directed by the learned Chief Justice without issuing any notice to the petitioner and without affording him an opportunity of being heard, which was a clear violation of the principle of natural justice that the High Court was not competent to suo motu make order of the nature impugned herein ; and that the High Court being complainant in this case could not have the authority to select a forum of its choice for the trial of this case. These were the grounds taken up by the petitioner in his address to the Court.
5. Mian Muhammad Ajmal, Advocate argued this matter on behalf of the State.
6. In respect of first ground the petitioner argued that under section 193(1), Cr. P. C., the Court of Session cannot take cognizance of any offence as a Court of original jurisdiction, unless the case has been sent to it under subsection (3) of section 190, Cr. P. C. He further argued that since the case registered against him was not exclusively triable by the Court of Session, it could not be transferred to it by the Ilaqa Magistrate under subsection (3) of section 190, Cr. P. C. He contended that since no order has been made or could have been made under subsection (3) of section 190, Cr. P. C., the Additional Sessions Judge cannot proceed with the hearing of the case and on this ground his petition merits acceptance. No doubt, under normal circumstances a Magistrate can take action under subsection (3) of section 190, Cr. P. C only in respect of an offence triable exclusively by a Court of Session and not in respect of an offence which can be tried by him. It is also true that ordinarily the Court of Session shall not take congnizance of any offence as a Court of original jurisdiction. Unless the case has been sent to it by the Magistrate under section 190(3), Cr.P.C. But the petitioner while arguing this point, however, lost sight of the words. Except as otherwise expressly provided by this Code, or by any other law for the time being in force" as appearing in subsection (1) of section 193, Cr. P. C. These words clearly render the provisions contained in subsection (1) of section 193 subject to the express provisions contained elsewhere in the Code or in any other law for the time being in force. Its effect, therefore, is that if there is any other express provision in the Code or in any other law for the time being in force which authorizes the Court of Session to try a particular case, though not exclusively tribal by it under the Code, then that Court shall be competent to try such a case, even if it may not have been sent to it under subsection (3) of section 190, Cr. P. C. Since in this case I am concerned with the order made by the High Court under the Code, I would. Therefore, confine my discussion to section 526, Cr. P. C., which enables the High Court to provide any Court with authority to try a case ordinarily not tribal by it.
7. Section 526, Cr. P. C. In its subsection (1) provides for the transfer and the entrustment of cases for trial by the High Court to any subordinate Court which may otherwise not have the powers to take cognizance of such cases. Such an order can, however, be made by the High Court when it is satisfied that one or more of the conditions mentioned in clauses (a) to (e) of the said subsection are present to warrant such an action. What course the High Court would select out of those mentioned in clauses (i) to (iv) specified in subsection (1) would depend on the circumstances of each case. In this case while directing that the petitioner be tried by the Court of Session, the learned Chief Justice was satisfied that such a course was expedient in the ends of justice. This order of the learned Chief Justice was covered by clause (e) of subsection (1), so far as the reason for making the order was concerned. As to the sufficiency of the ground for making such an order, no exception would be taken by any party to litigation as the learned Chief Justice was the sole Judge in the matter. The petitioner has, however, challenged the impugned order on the ground that since at, the time of its making his case was not pending in any Criminal Court, but was under investigation by the Police, the order of the nature impugned herein could not have been made by the learned Chief Justice or, for that matter, by the High Court.
8. There are two clauses, i. e, clauses (it) and (iv), specified in subsection (1) of section 526, Cr. P. C., whereunder order of the nature impugned herein could have been made by the High Court. The operative part of the impugned order reads :- "The case is transferred from the Court of the Illaqa Magistrate to the Sessions Court."
The petitioner has taken exception to this order and argued that since it purports to have been passed under clause (ii) of subsection (1) on the basis of an assumption that the case was pending in the subordinate criminal Court for trial, which was factually incorrect, it was consequently void and of no legal effect. The language of the impugned order was suggestive of the fact that this order was passed on the assumption that the case was pending in the criminal Court from where it was directed to be transferred to the Court of Sessions. However, this order could also be taken to mean that it was to take effect on a future date when the challan was actually put in the Court of Ilaqa Magistrate from where on the strength of this order the case shall stand transferred to the Court of Sessions for trial. The intention behind this order, however, was clear and that was that since the accused (petitioner) was a practising Advocate, he should be tried by the Court of Sessions (higher Court) and not by the Magistrate's Court. Be that as it may, the impugned order can be defended on the strength of the provisions contained in clause (iv) of subsection (1) o section 526, Cr. P. C., which authorises the High Court to make an order that an accused person be sent for trial to a Court of Sessions. While invoking powers under clause (iv) it is not necessary to see that the case respecting such an accused, person should be pending in a subordinate criminal Court. An order under this clause, in my view, can be made by the High Court even though the challan may not have yet been put in the Court of Magistrate. All that is required is that while exercising this power the High Court should not enter into the domain exclusively reserved for the Police Officers under the Code. The direction given by the High Court would, therefore, either be addressed to the Court of Ilaqa Magistrate, as was done in this case, or be couched in the language that would signify that when the accused is challaned to the Court, then his case should be sent for trial to the Court of Sessions or the High Court, as the order may direct.
Before passing order under clause (iv) of subsection (1), however the High Court has to see that the person in respect of whom order is made P is an 'accused person' within the meaning of the said clause. It is now to be seen whether or not the petitioner at the relevant time was an 'accused person' within the meaning of the said clause.
9. The expression 'accused person', though used in the Code at many places, has not been defined therein. It has, however, been judicially G interpreted to mean a person over whom the Court is exercising jurisdiction. For authorities reference be made to (1892) I L R 16 Born. 661, (1896) I L R 23 Cal. 493 and (1912) I L R 34 All.
533. It was also held in AIR (34) 1947 Lah. 92 that a person arrested by the Police on a criminal charge is an accused person for the purposes of the Code.
10. It has already been observed that the petitioner was arrested by the Police on 14-7-1979 is consequence of the investigation done by the Police, pursuant to the letter dated 10-7-1979 sent by the Registrar, Peshawar High Court. He was produced by the Police before Ilaqa Magistrate on 15-7- 1979 for obtaining remand. On that day an application for the grant of bail to the petitioner was also moved before the Haqa Magistrate, who, after bearing the learned counsel for the petitioner and P. S. I. For the. State and after applying his mind to the facts of the case appearing from the record, rejected the bail application and remanded the petitioner to Judicial lock-up, to be produced before him on 29-7-1979. The petitioner had then moved the learned Sessions Judge for the grant of bail, who allowed him bail on 22-7-1979. These orders clearly show that the petitioner was given in the custody of the Court after his arrest by the Police, and such custody is being regulated by the Court having jurisdiction in the matter in the manner deemed appropriate. It is, therefore, established on the record that the petitioner was arrested by the Police and over him the;, Court having, jurisdiction in the matter did exercise such jurisdiction. In such circumstances, I am of the view that the petitioner at the relevant time was an "accused person" within the meaning of clause (iv) of subsection (I) of section 526, Cr. P. C. That being so, the learned Chief Justice under the said clause had the power to direct that the case of the petitioner be sent for trial to the Court of Sessions. This order he could make no matter the complete challan had not by then been submitted to the Ilaqa Magistrate. The order also did not have the effect of making encroachment on the jurisdictions vested in the Police. The first ground taken up by the petitioner, therefore, without substance.
11. The second ground urged by the petitioner is his arguments was equally without force. It is true that from the record it appears that the learned Chief Justice had passed the impugned order on administration side, but such order cannot be taken exception to, in view of the Supreme Court decision in Zulfiqar Ali Bhutto's case . The law laid down by the Supreme Court in that case is that transfer of case, or for that matter the directions given by the High Court having the same effect, in administrative capacity would be perfectly valid. Being bound by the law laid down by the.
Supreme Court, I cannot be persuaded by the decision given in case reported as PLD 1962 Dacca
574. I, therefore, hold that the impugned order passed by the learned Chief Justice cannot be assailed on this ground.
12. The third ground argued by the petitioner that while passing the impugned order the learned Chief Justice had not heard him, and had thereby violated the principle of natural justice, was also without substance, as the law on the subject does not provide for giving of notice to the parties concerned when the High Court invokes suo motu jurisdiction under section 526, Cr. P. C. In this view of the matter, I am supported by the decision of the Lahore High Court and also of the Supreme Court in Zulfiqar Ali Bhutto's case respectively 1978 P Cr. L J 332 and PLD 1979 SC 52.
13. The fourth ground urged by the petitioner cannot prevail because under subsection (3) of section 526, Cr. P. C. The High Court is competent, in exercise of suo motu jurisdiction, to make order of the nature impugned herein.
14. The last argument of the petitioner was that the High Court being complainant in the case could not select a forum of its choice for the trial of this case. This argument is devoid of force because the Court which has to try the case is a Court constituted and already functioning under normal law and is expected to do justice to the petitioner, no matter it is trying the case under the orders of the High Court. Moreover, if this argument is accepted, then no Court in the Province can try this case as all criminal Courts are under the supervisory jurisdiction of the High Court. Further, the order was made by the learned Chief Justice for the ends of justice and because the petitioner, who is accused in the case, is a person practising one of the respectable professions. No prejudice has, therefore, been caused to the petitioner by making the impugned order.
15. While addressing the Court the petitioner cited 1979 P Cr. L J 428, PLD 1962 (W. P.) Kar. 633, PLD 1979 Quetta 1, PLD 1979 Quetta 69, PLD 1979 Quetta 156 and 1982 SCMR 101. I have gone through all the cited cases and they are hardly relevant to the facts of the case, and would, therefore, not further the petitioner's case.
16. In the result, there being no merit in this petition, it is hereby dismissed.
17. It is a matter of concern that the challan of the case was received in the Sessions Court on 13- 10-1979 and since then no progress has been made in the case, because of the successive applications made by the petitioner for the quashment of proceedings pending before the learned Additional Sessions Judge. The learned Additional Sessions Judge, would, therefore, dispose of this case as expeditiously as possible. Office would expeditiously send copy of last paragraph of this order to the learned Additional Sessions Judge, alongwith the record of the case.1