A common question of law, whether a case pending in a Court outside the appellate jurisdiction of this Court, can be transferred to a Court within its jurisdiction, arises in Criminal Miscellaneous Petition go. 914 of 1971, entitled Ch. Sami Ullah of Shifa Medico, Lahore v. The State and Criminal Miscellaneous Petition No. 17/T of 1972, entitled Akhtar Hussain Bhutta, Proprietor, Nawabsons Laboratories, 188-Multan Road, Lahore v. The State. These two petitions shall therefore, be disposed of together. It is needless to say that both the petitions have been preferred under section 18 read with section 526 of the Code of Criminal Procedure.
2. The facts of the first petition are, that the petitioner, who has a permanent place of business at Lahore under the name of Shifa Medico, deals in manufacturing medicines. In year 1968, his firm sold some medicines to Noor Elahi and Muhammad Aslam Medical Store, Lucki Gate, Bannu. The sale took place at Lahore. However, the petitioner has been summoned by the Assistant Commissioner of Bannu, to stand trial under section 18 of the Drugs Act, 1940, on the ground that the medicines sold by him in 1968 were sub-standard. The prayer is that the said case may be transferred from Bannu Court to a Court of competent jurisdiction at Lahore.
3. The facts of the second petition are that the petitioner is a manufacturer of medicines and supplied certain medicines to M/s. Pak. Medicos, Jamesabad, District Mirpur Khas, Sind, in October 1971. The sale took place at Lahore. However, the petitioner has now been summoned by Mr. M. A.
Kazmi, Civil Judge and Magistrate Ist Class, Somaro and Jamesabad, District Mirpur Khas (Sind) to stand trial under section 18 of the Drugs Act, 1940 read with section 27 of the same Act, on the ground that the items sold by him were sub-standard. The prayer is that the said case may be transferred from the Court of Mr. M. A. Kazmi to a Court of competent jurisdiction at Lahore.
4. The first petition came up before me on 23rd December 1971, and on the basis of the decision of the Calcutta High Court, in Charu Chandra Majumdar v. Emperor (I L R 44 Cal. 595) and Hiran Kumar Chowdl:ury v. Mangal Sea (20 .I C 222), was admitted to a full hearing. In the above cases, the Criminal cases pending outside the appellate jurisdiction of the Court, were transferred to the Courts within its own jurisdiction.
5. The second application referred to above, came up before me on 14th January 1972 and since the same question arose in this petition also, it was admitted. It was directed that both the S petitions shall be listed together.
6. I have heard learned counsel for the petitioners and Mr. Rashid Aziz Kan, learned counsel for the State.
7. Section 185 of the Code of Criminal Procedure, originally read as under: "Whenever any doubt arises as to the Court by which any offence should under the preceding provisions of this Chapter be inquired into or tried, the High Court within the local limits of whose appellate Criminal jurisdiction the offender actually is may decide by which Court the offence shall be inquired into or tried."
Both the cases cited before me at the time of the admission of the first application, relate to a period when the aforementioned provisions of law was in force. It was, therefore, held that the High Court had the power under section 185 of the Code of Criminal Procedure to make order in respect of an inquiry instituted or trial commenced in a Court situated beyond its territorial limits, provided the offender resided within its jurisdiction.
8. Section 185 of the Code of Criminal Procedure, was redrafted by section 43 of the Code of Criminal Procedure (Amendment) Act, 1923. It was radically changed and re-cast. The new section, which holds the field at present, runs as follows:-- "185--(1) When ever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court.
(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in any Court subordinate to it and if it so decides all other proceedings against such person it respect of such offence shall be discontinued. If such High Court, upon the matter having been brought to its notice, doe not so decide, any other High Court, within the local limits o whose appellate criminal jurisdiction such proceedings are pending may give a like direction, and upon its so doing a' other such proceedings shall be discontinued."
This section has been divided into two clauses. Subsection (1) restricted to cases, where the two Courts, whose relative jurisdiction is in question, are subordinate to the same High Court.
The contingency, where the two Courts are subordinate different High Courts is now provided in subsection (2) under entirely new procedure. Subsection (2), therefore deals only with those cases, where with respect to the same subject-matt litigation is going on in two different Courts subordinate to the different High Courts. Then in that case, the High Court will whose appellate criminal jurisdiction, the proceedings comment first, would be in a position to direct that the trial of the offence may be held in any Court subordinate to it. It has taken away the power from the High Court within whose jurisdiction the offender resided to transfer the case to its own jurisdiction from outside.
9. After the amendment came into force, question of the transfer of a case from the jurisdiction of one High Court to the appellate criminal jurisdiction of another High Court, came up for decision in the case Radhika Nath Saha v. Jotish Chandra Sahu (AIR 1924 All. 71), Walsh, J. Considered the Calcutta case reported as I L R 44 Cal. 595 referred to above and distinguished it. He observed that a High Court has no jurisdiction to transfer criminal cases, which are in the course of hearing in another province to its own appellate criminal jurisdiction. It was pointed out that the decision in the Calcutta case had been given before the amendment of section 185 of the Code of Criminal Procedure. My attention was drawn by the learned counsel for the State to section 527 of the Code of Criminal Procedure, whereby a Provincial Government can direct the transfer of a case or appeal from one High Court to another, provided this is done with the consent of the Provincial Government, to which the case or the appeal is transferred.
10. Be it as it may, after the perusal of the newly enacted section 185 of the Code of Criminal Procedure, I um positively of the view that this Court has no jurisdiction to direct transfer of a case pending in a Court within the jurisdiction of another High Court. Before closing, however, I may refer to a contention raised by Mr. S. A. Marian, to the effect that the transaction in the case of Sami Ullah of Shifa Medico, took place in 1968, when there was only one High Court i.e. The High Court of West Pakistan, and therefore, this Court would have jurisdiction to direct the transfer of the case from Bannu to a Court at Lahore. In support of his contention, he referred to Articles 14 and 15 of the President's Order No. 1 of 1970, Province of West Pakistan (Dissolution) Order, 1970. I have gone through these articles and I am not Inclined to agree that those are in any manner helpful to him.
On the other hand, the impression which I gather is that for every province there will be a separate High Court unless some provinces form themselves into a group and decide to have one High Court and an order to that effect has been made by the President, as in the case of Sind & Baluchistan. If the argument had force, then it would be within the competence of a Judge of this Court to inspect the Courts at Mardan or Peshawar, which undoubtedly cannot be done. These Courts are outside the jurisdiction of this Court. Thus for the foregoing reason, I find no merit in the petitions and the same are hereby dismissed.