MALIK MUHAMMAD QAYYUM, J.~ The petitioner is currently confined in Central Jail Kot Lakhpat, Lahore as an under trial prisoner in a case registered against him and others under Sections 302/307/148/149 JPPC, vide F.I.R. No.33/84 at Police Station Old Anarkali, Lahore, which is being tried by the Court of Mr. Farman Ali Khan, Additional Sessions Judge, Lahore. On 21st November, 1990, the petitioner, Was not produced before the learned Additional Sessions Judge on the ground that the Government of Punjab had by a notification dated 17th February, 1990 directed that the case against the petitioner and his co-accused be tried in the premises of Central Jail, Kot Lakhpat Lahore. On a subsequent date of hearing, the notification bearing No. Judl-II-23-I/90(P) issued by the Secretary to the Government of Punjab, Department was produced. This notification has been assailed by the petitioner, by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Mr. Azmat Saeed, learned counsel for the petitioner submitted that according to Section 352 of the Code of Criminal Procedure, 1898, a criminal trial is to be held in an open Court, and the power to direct that the public shall not be admitted to a Court Room or a building used by the Court vests only in the Presiding Judge or the Magistrate, as the case may be. It was maintained that the respondent Government or the Home Secretary had no jurisdiction whatsoever to direct that the trial be held in jail. Reliance was placed on Sh. Hafiz Ullah vs. The State (PLD 1975 Lah. 1453).
Rana Muhammad Arshad, the Additional Advocate General, however contended that the Home Secretary being directly concerned with the maintenance of law andorder, could order the holding of the trial in Jail as to ensure safety of the accused and to avoid any untoward incident as also to forestall any attempt to rescue the accused. It was emphasised that the accused in this case were hardened criminal and are involved in more than one case.
3. In order to appreciate the contentions of the learned counsel for the parties, a reference to section 352 of the Criminal Procedure Code, which reads as under, is necessary:-- "S 352. The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access, to or be or remain in, the room or building used by the Court."
A reading of this provision shows that the Criminal Court has to hold proceedings in open and in view of general public in a building to which the public can generally have access. A power is however, vested in the presiding Judge or the Magistrate, as the case may be, by the proviso to exclude the public generally or any particular person from having access to the Court room or the building where the enquiry or the trial is being held by the Court.
It will be of advantage at this stage to take note of the provisions of Part A of Chapter-I of Volume- III of the Rules and Orders of the Lahore High Court. According to Rule 1 all trials when held at the Headquarter of the District or Sub Division should be conducted by the Officers at their Court House only. Rule 3 makes reference to section 352 of the Criminal Procedure Code and provides that the discretion to exclude the public from the ordinary Court room vests in the Magistrate and if he for any reason wishes to exclude the public by holding court in a building such as jail to which the public is not admitted, he shall obtain the sanction of the Government through the District Magistrate and should inform the High Court that the sanction has been accorded by the Government.
Section 352 of the Criminal Procedure Code when read conjunctively with the aforesaid rules when read consecutively with the aforesaid rules leaves no doubt that generally all trials are to be held in an open Court. The Presiding Officer has however been vested with the power to hold the proceedings in a camera or at a place such as jail to which the public does not have any access but this power can be exercised by him only after obtaining permission from the Government through the District Magistrate. He is further under an obligation to inform the High Court that the sanction has been granted by the Government to hold the Court at a place other than the Court- house. Neither section 352 of the Criminal Procedure Code nor the rules on the subject empower the Government, the Home Secretary, or the District Magistrate to pass any order of their own directing the holding of trial at a place other than the Court-house. It is not difficult to understand the rational as to why such a power has not been conferred upon the executive authorities. To allow them to determine the venue for holding Court would undermine the independence of the Judiciary.
4. It is true that in certain eventualities the holding of a particular trial in the Court-house may not be possible or practical keeping in view the security of the accused, the danger of their rescue or the law and order situation. The District Magistrate or Home Secretary may genuinely be of the opinion that holding of trial in open in such a case is fraught with danger. In such a situation they can bring the necessary facts to the notice of the Court concerned which alone under the law is empowered to take a decision in the matter but they cannot be the arbiters of this question, this view find full support from the judgment of this Court in Sh. Hafiz Ahmad vs. The State (PLD 1975 Lah.
1453) and the two judgments from Indian jurisdiction, namely, M.R. Venkataraman (A.I.R. 1950 Mad.
441) and Prasanta Kumar Mukerjee v. The State (A.I.R. 1952 Cal. 91).
5. In the present case, it is not disputed that the proposal to hold trial in jail emenated from Superintendent of Jail Kot Lakhpat and no order in this respect was passed by the Court concerned. The notification issued by the Home Secretary is as such without any law authority and cannot be sustained.
For the reason aforesaid, this petition is accepted and the notification dated 17.2.1990 is declared to be without lawful authority and of no legal effect. It shall, however, be open to the respondents to approach the Additional Sessions Judge, for consideration of the request that the trial may be held in jail. There shall be no order as to costs.