On 26-6-1969, a fight took place in the revenue estate of village Ghulam A.I Gharbi, Police Station Kot Addu, District Muzaffargarh, between two parties over the possession of land, resulting in the death of Allah Diwaya and Abdul Hakeem from the side of Ghulam Jaffer petitioner and one Bashir Lahoria from the side of the respondents. Accordingly two cross-cases under sections 148, 302/149, P. P. C. Etc. Were registered against the members of both the parties, who were allowed bail on different dates by different Courts with the exception of one person on either side to whom fatal injuries were attributed.
2. Criminal Revisions Nos. 918 and 919 are filed by Ghulam Jaffer complainant for the cancellation of bail allowed to the respondents by two different orders dated 23-7-1969 and 30-7-1969 passed by the District Magistrate, Muzaffargarh, exercising delegated powers of Additional Sessions Judge, under section 17(4) of the Cr. P. C. The relevant order of delegation of powers passed. By the learned Sessions Judge of the Multan, Sessions Division which also includes the District of Muzaffargarh, is dated 2-7-1969, and has been placed on the record.
3. Learned counsel for the petitioner has raised the following contentions before me:-
(i) That since the Sessions Judge, Multan, which also includes Muzaffargarh in the Sessions Division, was himself present at the headquarters he was not competent to make an order of delegation which could only be done either in the event of his absence or his being incapable of acting as such. It is submitted that there is nothing to indicate that he was incapable of acting himself and the only ground on the pretext of which the order of delegation is made is that of the absence on leave of the Additional Sessions Judge of Muzaffargarh. Reliance is placed in this regard on Mopal v. Ghulam and others PLD 1953 Lah. 110.
(ii) On merits, it is contended that the learned District Magistrate could not ignore the invocation of sections 148 and 149, P. P. C. By the prosecution and deal with the matters as if they were cases of individual responsibility of each of the accused.
4. (i) On the contrary, it is contended by the learned counsel for the respondent that the mere fact that the Additional Sessions Judge was not available at Muzaffargarh furnished sufficient jurisdiction for the Sessions Judge to make the order of delegation as he was certainly incapable of acting himself at Muzaffargarh. It is argued that according to well-settled principles of interpretation a judicious and reasonable construc--petition is to be placed on the statute which should advance the remedy and facilitate the administration of justice.
(ii) It is next contended that even otherwise, the petitioner himself having invoked the same jurisdiction of the District Magistrate and successfully too, could not be allowed to challenge t the same when it does not suit him.
(iii) On merits, it is contended that since the question of r possession of land had been admittedly settled between the parties and the fight took place suddenly over the eviction of the tenants from the out-houses, the invocation of sections 148 and 149 would not be justified and possibly may not be upheld by the trial Judge.
(iv) It is further submitted that case of Agha Muhammad Akram, one of the co-accused of the respondents, who was allowed bail by this Court's order dated 6-8-1969 was almost identical with that of the respondents and the order of this Court was never challenged before the Supreme Court by the petitioner, which still holds the field. Likewise, it is submitted that six other co-accused of Agha Muhammad Akram were allowed bail by the Additional Sessions Judge vide his order dated 9-8-1969 whose case is also identical with that of the respondents, the order of enlargement having remained unchallenged.
5. In so far as the merits are concerned, having considered the impugned orders in the light of the allegations contained in the two F. I. Rs. As also having perused my elaborate order dated 6-8-1969 passed in Criminal Miscellaneous No. 5439/69, I. Would see no hesitation in dismissing the petitions and allowing the respondents to remain on bail. The fate of the case, however, hinges on the determination of the legal contention raised on behalf of the petitioner wherein the legality of the delegation of power under section 17(4) of the Cr. P. C. Made by the learned Sessions Judge, Multan, in favour of the District Magistrate, Muzaffargarh has been challenged. This statutory provision now sought to be interpreted reads as follows:- "S. 17(4), Cr. P. C.----The Sessions Judge may also when he himself is inevitably absent or incapable of acting make a prevision for the disposal of any urgent application by an Additional or Assistant Sessions Judge or if there be no Additional or Assistant Sessions--Judge by the District Magistrate and such Judge or Magistrate shall have jurisdiction to deal with any such application."
The precise contention raised on behalf of the petitioner is that since the Sessions Division, Multan comprised of the Districts of Multan and Muzaffargarh and the Presiding Sessions Judge with his Headquarters at Multan was not only very much present at Multan, but also capable of acting, there could be no valid order of delegation under section 17 (4), Cr. P. C., both the two conditions of inevitable absence or incapability to act having remained unsatisfied. A perusal of the order of the learned Sessions Judge, Multan dated 2-7-1969 passed under section 17(4), Cr. P. C. Shows that the delegation of powers in favour of the District Magistrate, Muzaffargarh had been necessitated by the absence of the Additional Sessions Judge, Muzaffargarh who was on leave from 1-7-1969 to 31- 7-1969. Obviously in a Sessions Division comprising more than one District, a Sessions Judge cannot be simultaneously present at both the District Head--quarters nor for that matter can he be capable of acting at both the places, and as such there has to be an order of delegation in favour of the Additional Sessions Judge or in his absence the District Magistrate at a place other than the one where the Sessions Judge himself is available and capable of acting. If however, the argument raised on behalf of the petitioner is accepted, no such delegation could have been validly made even in favour of the Additional Sessions Judge, Muzaffargarh, while he was there.
This is obviously not a reasonable interpretation which would defeat the very purpose of the provision made with the object of affording administrative facilities to the judicial officers concerned and immediate relief to the members of the public in urgent matters who otherwise shall have to go almost invariably to the Headquarters of the Sessions Division to approach the Sessions Judge himself. No doubt, this delegation of powers' is discretionary with the learned Sessions Judge as indicated by the use of the word `may' and where in his dis--cretion in certain cases he is not inclined to delegate these powers in favour of an Additional Sessions Judge or a District Magis--trate for good reasons, he is under no obligation to do so. Nevertheless, the object of this provision obviously is on the one--hand to make justice easier and cheaper by bringing the Courts within an easy access of the petitioners, if not at their door-steps, and on the other to afford some relief to the Sessions Judge himself by distribution of work which in some cases may be too voluminous and unmanageable to be coped with by him single-handed. These powers have been frequently if not invariably delegated by the Sessions Judges to the Additional Sessions Judges.
Learned counsel for the petitioner has not been able to cite a single authority wherein such a delegation in favour of the Additional Sessions Judge with Headquarters at a place other than those of the Sessions Judge himself, were successfully challenged. Once it is conceded that the delegation in favour of the Additional Sessions Judge could be validly made in the event of his non-availability at Muzaffargarh there can be obviously no objection to such a delegation in favour of the District Magistrate, Muzaffargarh in the absence of the Additional Sessions Judge who had proceeded on leave. The only authority cited on behalf of the petitioner as also relied upon by the learned counsel for the respondents is Mapal v. Ghulam and others (PLD 1962 Lah. 227). This case which was decided by Mr. Muhammad Munir, the former Chief Justice of Pakistan, in his Lordship's capacity as Chief Justice of the West Pakistan High Court, pertained to the District of Jhang which was included in Sessions Division, Layallpur. The learned Sessions Judge, Lyallpur had delegated powers to the Additional Sessions Judge, Jhang under section 17(4), Cr. P. C. To deal with urgent matters, who in turn had further delegated these powers to the District Magistrate, Jhang to dispose of urgent applications during his absence on account of leave. It was in exercise of such delegated powers that the District Magistrate passed an order allowing bail to some accused persons which were held by his Lordship to be illegal for the obvious reason that such a delegation in favour of the District Magistrate could be made only by the learned Sessions Judge and not by the Additional Sessions Judge. In the same case, an order of bail allowed by the Additional Sessions Judge in exercise of his delegated powers was also challenged before his Lordship.
Having presumed that the Sessions Judge must have issued an order of delegation in favour of the Additional Sessions Judge, his Lordship refused to interfere with the order passed by the Additional Sessions Judge. This part of the decision of his Lordship furnishes complete answer to the argument advanced on behalf of the petitioner. The delegation of powers in favour of the Additional Sessions Judge; Jhang was upheld by the learned Chief Justice which in his absence could be validly made in favour of the District Magistrate. It cannot be disputed that unlike the precedent case, in the case before me the delegation was made by the Sessions Judge and secondly that the Additional Sessions Judge, Muzaffargarh was not available having proceeded on leave, and it was in his absence that the delega--petition was made in favour of the District Magistrate. Obviously, therefore, such a delegation is not open to question on the legal plane, in view of well-settled principles of construction.
6. The upshot of the discussion is that the petitions fail and are hereby dismissed.