1. ' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order of the Shariat Court, dated 12-10-1995, whereby the transfer application filed by the appellant, herein, was dismissed.
2. ' The brief facts of the case are that on report of the appellant, herein, a criminal case under sections 147, 148 and 149, Penal Code and section 15 of the Islamic Penal Laws Act read with section 34, Penal Code, against respondents Nos.2 to 5, was registered. After the investigation, the police challenged the said respondents in Tehsil Criminal Court, Sehnsa. Another criminal case, on the report of one Muhammad Kabir, was registered against the appellant and some other accused under sections 307, 147, 148 and 149, Penal Code, read with sections 5 and 15 of Islamic Penal Laws Act. The occurrence in both the cases is alleged to have been taken place on 3-3-1995 at about 1- 30 p.m. The challan of the subsequent case was filed in the District Criminal Court, Kotli. A transfer application was made by the appellant, herein, before the Shariat Court praying that the case pending in Tehsil Criminal Court, Sehnsa, should be transferred to the District Criminal Court, Kotli, because both the cases had arisen out of the same incident and, thus, should be tried simultaneously by the same Court. The Shariat Court dismissed the application relying on an unreported case entitled Abdul Wahid v. Ali Muhammad Criminal Miscellaneous No,16 of 1982, decided on 19-5-1983, wherein it was held by the Shariat Court that only a case from one District Criminal Court can be transferred to another District Criminal Court and not a case pending in Tehsil Criminal Court to the District Criminal Court under the provisions of the relevant law.
3. ' We have heard the arguments and gone through the record. It may be observed here that there is also disagreement between the parties as to whether both the cases are the result of a same incident or not. However, the Shariat Court did not give any finding on the point and dismissed the transfer application following its view taken in Abdul Wahid's case, referred to above. It appears that in the aforesaid case, the learned Judge in the Shariat Court was influenced by the provision contained in subsection (3) of section 25 of the Islamic Penal Laws Act which stipulates the transfer of a criminal case from one District Criminal Court to other District Criminal Court; the perusal of the Islamic Penal Laws Act, 1974 shows that there is also no provision for transfer of a case pending in one Tehsil Criminal Court to other Criminal Court. However, subsection (2) of section 32 of the Islamic Penal Laws Act envisages that where there is no specific provision in the Islamic Penal Laws Act, 1974, regarding any matter, the relevant provisions contained in the Penal Code and in the Code of Criminal Procedure shall be applicable to such matters. Under section 8 of the Act known as Azad Jammu and Kashmir Shariat Court Act, 1993, the provisions of the Code of Criminal Procedure have been made applicable mutatis mutandis to the proceedings before the Azad Jammu and Kashmir Shariat Court; besides, the proviso to the aforesaid provision stipulates that wherever, the words "High Court", "Sessions Court" and Magistrate 1st Class" occur in the Code of Criminal Procedure, those would be read as "Azad Jammu and Kashmir Shariat Court", "District Criminal Court" and "Tehsil Criminal Court", as the case may be, for the purposes of the Act. For convenience, section 8 of the Azad Jammu and Kashmir Shariat Court Act is reproduced as under:- "8. Application of Code of Criminal Procedure, 1898 (Act V of 1898), and amendment.--- The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply, mutatis mutandis, in respect of cases under this Act: ' Provided that in the said Code the words High Court, Sessions Court, and Magistrate First Class wherever occurring, shall be construed to mean the Azad Jammu and Kashmir Shariat Court, District Criminal Court and Tehsil Criminal Court, as the case may be, for the purposes of this Act."
4. Under section 526(1)(e) of the Code of Criminal Procedure, if ends of justice so require, a case can be transferred for trial from one Court to another and such a transfer can be ordered not only from one Criminal Court to other Criminal Court of equal jurisdiction but also of superior jurisdiction. The relevant provisions contained in section 526(1)(e), (ii), (iii) and (iv) are reproduced below:-- "526 High Court may transfer case or itself try it.--- (1) Whenever it is made to appear to the High Court-- (a)
(b) .................................................................................................................................
5. (c)
(d) .................................................................................................................................
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order-- (i)
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction.
6. (Underlining is ours).
(iii) that any particular case or appeal be transferred to and tried before itself; or
(iv) that an accused person be sent for trial to itself or to a Court of Session.
(2) .................................................................................................................................... .(3)
(4) ................................................................................................................................
(5) ................................................................................................................................
(6) ................................................................................................................................
(7) ................................................................................................................................
(8) ................................................................................................................................
(9) ................................................................................................................................
(10) ....................................................
7. It is evident from the above provision that the Shariat Court cannot only transfer a criminal case from one District Criminal Court to another District Criminal Court but a case can be transferred from one Tehsil Criminal Court to District Criminal Court if the ends of justice so require. It may be pointed out that it is well-settled principle of law that in cross-cases the trial by the same Court has always been regarded as just and proper so as to avoid a conflict between the judgments of the two Courts about the same incident. A reference may be made to a case reported as Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522, wherein it has been held that in cross-cases the trial should be held by the same Court side by side and the judgment should be delivered simultaneously; quite a number of authorities have been relied upon and discussed in support of the view. An identical view has been taken in a case reported as Rafaqat Ali v. Hidayat Ali 1986 PCr.LJ 989 which again contains a survey of case-law on the point.
8. ' It follows from what has been stated above that the view taken in Abdul Wahid's case, referred to above, is not sustainable. Therefore, we accept the appeal, set, aside the impugned order of the Shariat Court and transfer the aforesaid case pending in the Tehsil Criminal Court, Sehnsa, to the District Criminal Court, Kotli. The question as to whether both the cases are the result of the same incident or not, would be considered by the District Criminal Court, Kotli, after recording evidence, because no definite finding on the point is possible without it.
9. ' In the light of what has been stated above, the appeal stands accepted as indicated above.