' ZAFFAR HUSSAIN MIRZA, J.--The petitioner who is a Government servant being Sub-Inspector, Sind Reserve Police, Karachi, was arrested on 27th January, 1987, and was subsequently challaned in five criminal cases pertaining to various Sessions Divisions in Karachi area and Hyderabad. On 16th April, 1987, the Government of Sind issued the following notification for the trial of offences charged against the petitioner:-- "Notification for the Sind Government Gazette Part-I.
NOTIFICATION ' No, VII (56) SOJ.--In exercise of the powers conferred by subsection (2) of section 9 of Code of Criminal Procedure 1898, the Government of Sind are pleased to appoint Mr. A.G. Gazdar, Additional Sessions Judge, for disposal of following cases:--
(1) F.I.R. No, 272 of 1986 P.S. Latifabad, (2) Hyderabad. F.I.R. No, 458 of 1986 P.S. New (3) Town, Karachi.
F.I.R. No, 42 of 1987 P.S. Clifton, Karachi.
(4) F.I.R. No, 85 of 1987 P.S. Gulshan-e-Iqbal, Karachi.
(5)F.I.R. No, 43 of 1987 P.S. Jamshed Quarters, Karachi.
' No, VII (56) of SOJ/87. The Government of Sind are pleased to authorise Mr. A.G. Gazdar Additional Sessions Judge, Karachi (East) as Ex-officio Sessions Judge to hold sittings at the Central Prison, Karachi for conducting the trial of the following cases:--
(1) F.I.R. No, 22 of 1987, under section 364/302, P.P.C. Read with 10 Zina Ordinance, P.S. North Karachi.
(2) F.I.R. No, 272 of 1987 under section 392, P.P.C. Read with 17(3) of E.H.O. P.S. Latifabad, Hyderabad.
(3) F.I.R. No, 458 of 1986 under section 365/392, P.P.C. Read with 16 Zina Ordinance and 17(3) EHO of P.S. New To Karachi (East).
(4) F.I.R. No, 42 of 1987 under section 365/325, P.P.C. Read with 16 Zina Ordinance and 17(3) EHO P.S. Clifton Karachi (South).
(5) F.I.R. No, 85 of 1987 under section 13-E-Arms Ordinance of P.S. Gulshan-e-Iqbal, Karachi (East).
(6) FIR No,43 of 1987 under section 13-E-Arms Ordinance of P.S. Jamshed Quarters, Karachi (East).
2. The petitioner filed a Constitutional petition in the High Court of Sind,Karachi, challenging the validity of the aforesaid notification contending that Provincial Government had no legal authority to appoint Mr. A.G. Gazdar, as ex-officio Additional Sessions Judge for the disposal of the aforesaid cases and that it had no power to direct the trial of those cases at the Central Prison, Karachi, in violation of section 352, Cr.P.C. A Division Bench of the Sind High Court rejected these contentions and held that the Provincial Government had ample authority in law to appoint a Judge for more than one Court under section 9, Cr.P.C. And also to direct at what place or places the Court so constituted shall hold its sittings. Learned Judges also referred to section 178, Cr.P.C. To point out that the Provincial Government was competent to direct any case or class of cases in any district to be sent for trial to a Court of Sessions in another Sessions Division. In this view of the matter the learned Judges dismissed the Constitutional petition of the petitioner in limine by their order, dated 3rd June, 1987, which is sought to be challenged in this petition.
3. It is contended by Mr. Azizullah Shaikh, learned counsel appearing for the petitioner, that under section 9(2), Cr.P.C. Under which the impugned notification has been issued by the Provincial Government, is in substance an order transferring the various criminal cases against the petitioner, actually pending for trial before Courts of Session in different Sessions Divisions which power the Government does not possess under any provision of the Criminal Procedure Code. Counsel further argued that in any case the notification does not purport to transfer the pending cases to a Court of Session constituted under the Criminal Procedure Code, as according to the learned counsel, as he put it, there is no such Court as the "Sessions Court, Karachi Jail". A further objection was taken to the validity of the notification on the ground that the Provincial Government was not competent to order trial in camera in the Central Prison, Karachi, where even the near relations of the petitioner have been refused admittance to witness the proceedings.
4. Learned Additional Advocate General who was present on Court notice initially sought to support the impugned notification on the grounds that prevailed with the learned Judges of the High Court.
He submitted that a corrigendum has been issued on 4th May, 1987, whereby the words "subsection (2)" as they occur in the notification have been substituted with the words "subsection (3)", with the result that the notification now stands amended and falls under subsection (3) of section 9, Cr.P.C. He maintained that the Provincial Government was competent according to law to appoint an Additional Sessions Judge of a Court of Session of one Sessions Division as an Additional Sessions Judge for more than one Court of Session established under section 9(1) read with subsection (3) of that section. Thus, he submitted that there was no legal infirmity in the impugned notification. Learned Additional Advocate-General also repudiated the contention that the Government has directed trial in camera, as according to him the venue for the holding of trial has only been fixed at the Central Prison, Karachi, which power was claimed to vest in the Provincial Government under subsection (4) of section 9, Cr.P.C.
5. After hearing the learned counsel for the parties we are of the view that this petition can be disposed of on a short point. It is conceded by the learend Additional Advocate-General that there are three separate Sessions Divisions in Karachi for which separate Courts of Session have been established by the Provincial Government. The Sessions Court at Hyderabad is of course also a separate Court of Session. It is, therefore, clear that the six criminal cases covered by the notification were pending in different Courts of Session at Karachi and Hyderabad. It is also admitted position that Mr. A.G. Gazdar was Additional Sessions Judge, Karachi (West) at the relevant time. As section 9 is crucial for decision of this case it may be reproduced below:- "Section 9.--(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."
' It will be seen from subsection (3) of section 9, on which strong reliance has been placed in support of the impugned notification that a power to appoint Additional Sessions Judge, vesting in the Government is in respect of one or more Courts established as Court of Session in relation to a Sessions Division created under section 7 of the Criminal Procedure Code. Each Court of Session, in regard to which Additional Sessions Judge can he appointed, has therefore territorial connotation or nexus. The scheme envisaged by the Criminal Procedure Code does not contemplate a Court of Session without reference to territorial limits in the Province. Therefore, the power of the Provincial Government under subsection (3) to appoint one and the same person to be the Additional Sessions Judge is in relation to more than one Court of Session and in that case, the person so appointed can exercise jurisdiction in each of such Courts. The framework of the administration of justice visualized under the Code does not contemplate the appointment of an Additional Sessions Judge for the trial of specified cases only, without reference to the already established Courts of Session within whose ordinary jurisdiction the cases may be pending trial. The result is that a person not appointed as an Additional Sessions Judge in respect of particular Courts of Session, will have no jurisdiction to act as such under the Code and if he does so act, the acts would be void.
6. In the light of the legal position expounded hereinabove we have examined the notification in question and find that Mr. A.G. Gazdar, Additional Sessions Judge, Karachi, (West) has only been authorised to dispose of the specified cases without appointing him as an Additional Sessions Judge for the various Courts of Session from whose jurisdiction the listed cases have been called for trial by him. The notification is, therefore, per se illegal and issued without lawful authority. When this position was pointed out to the learned Additional Advocate-General he very fairly conceded to it. The omission or the failure to appoint the concerned Judge as an Additional Sessions Judge of the concernerd Courts is a matter going to the root of his jurisdiction to try the petitioner in the listd cases and therefore, vitiates the notification. In the view we have taken the entire notification including Part H thereof purporting to authorise the learned Additional Sessions Judge to hold sitting at the Central Prison, Karachi for the trial of cases mentioned in the I Part of the notification also would be resultantly vitiated. We, therefore, do not feel it necessary to express any opinion on the question whether the venue of the trials could be fixed at the Central Prison, Karachi, in the present proceedings.
7. In the result we convert this petition into an appeal, quash the impugned notification and allow the appeal. However, the Government may issue another notification in accordance with law if considered expedient.