' This revision petition under section 435/439, Cr.P.C. Has been directed against the order, dated 25- 7-1995 passed by Mr. Muhammad Aslam Somra, learned Additional Sessions Judge/Duty Sessions Judge, Multan whereby he had withdrawn the bail application of the respondents and the same was entrusted to Mr. Ahmed Raza Khan, learned Additional Sessions Judge, Multan.
2. The facts in brief are; that an Indictment No,121 of 1995, dated 3-6-1995 was got registered with Police Station, Saddar, Shujabad under section 324/337-A(ii)/337-F(i)/34, P.P.C. On the statement of one Talib Hussain against the accused/respondents Nos.2 to 4 alleging therein that the injuries were caused by respondents Nos.2 to 4 to Fazal Hussain, father of the complainant/petitioner. The investigation was conducted and thereafter respondents Nos.2 to 4 were arrested. The bail petition of the respondents was submitted in the Court of Magistrate Section 30 (Judicial) which was declined on 13-7-1995 by him.
3. The post-arrest bail petition, thereafter, was submitted in the Court of learned Sessions Judge, Multan and the same was entrusted to Mr. A.D. Khalid, Additional Sessions Judge for disposal. The learned Additional Sessions Judge on 19-7-1995 adjourned the proceedings for 23-7-1995. On 23- 7-1995, the requisitioned record was not present and the same was adjourned for 20-8-1995.
4. Meanwhile, the accused/respondents Nos.2 to 4 submitted an application for the withdrawal of the said bail petition and entrustment of the same to some other Court of competent jurisdiction.
Since the learned Sessions Judge had also proceeded to summer vacation and Mr. Muhammad Aslam Somra, Additional Sessions Judge was acting as Duty Judge, this application for the withdrawal of the bail application and the entrustment of the same was presented before Muhammad Aslam Somra, learned Additional Sessions Judge-respondent No,1 herein. He on that application passed an order on 25-7-1995 which reads as follows:-- "Entrustment to Mehr Ahmad Raza Tharaj, Additional Sessions Judge for disposal in accordance with law.
(Sd.) Judge."
' The said application was entrusted to Mr. Muhammad Raza Khan, Additional Sessions Judge as Mr. A.D. Khalid, Additional Sessions Judge, had proceeded on summer vacation.
5. The learned counsel for the petitioner vehemently argued that the learned Additional Sessions Judge, Muhammad Aslam Somra, was not competent to pass an order for 'withdrawing the bail application from the Court of Mr. A.D. Khalid, Additional Sessions Judge and entrusting the same to the Court of Mr. Ahmed Raza Khan, Additional Sessions Judge, Multan. The learned counsel has referred sections 7 and 9 of Cr.P.C. Where the word "Sessions Judge" is written for each Sessions Division. The word "Duty Sessions Judge" is nowhere mentioned in the Cr.P.C. Further argued that section 528, Cr.P.C. Deals with the entrustment and the withdrawal of the case and this power is exclusively to be exercised by the learned Sessions Judge and not by the Duty Sessions Judge. Impetuously argued that section 17, subsection (4) of Cr.P.C. Deals with the situation when the Sessions Judge is unavoidably absent or incapable of acting, making the provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge. In the case in hand, the application was already pending in the Court of another Additional Sessions Judge i,e, Mr. A.D. Khalid, Additional Sessions Judge. Neither the application could be termed as urgent nor the same be withdrawn and entrusted to another Court of Additional Sessions Judge. The requirement of subsection (4) of section 17, Cr.P.C. Is that a person, who performs his duties as Sessions Judge in the absence of the learned Sessions Judge shall only deal with the matter urgent in nature. In support of his contentions he relied upon Wali Muhammad v. Khizar Hayat and another 1982 PCr.LJ 501.
6. The second leg of the argument of the learned counsel for the petitioner is that the order itself speaks that the same was passed without notice to the petitioner and no reasons were given while passing this order, justifying it. Lastly argued that this order is not only illegal but has also been passed without lawful authority and is liable to be set aside.
7. On the other hand, the learned counsel for the respondents did not controvert the contentions raised by the learned counsel for the petitioner.
8. I have heard the learned counsel for the parties at a considerable length and have also gone through the record with their assistance.
9. The bail petition of respondents Nos.2 to 4 was, admittedly, entrusted to the Court of Mr. A.D.
Khalid, learned Additional Sessions Judge, Multan by the learned Sessions Judge, Multan, who had proceeded on leave, thereafter. Mr. A.D. Khalid, learned Additional Sessions Judge, also had proceeded on leave. The mere reading of the provisions of the Cr.P.C. Make it abundantly clear that in whole of the Code of Criminal Procedure, no independent existence of the office of Additional Sessions Judge to act ad Judicial Officer in any case unless any case is entrusted to him. It is the competency of the learned Sessions Judge to entrust the cases under section 193(2) of Cr.P.C. And to withdraw the same for further entrustment under section 528, Cr.P.C. When the learned Sessions Judge himself is unavoidably absent or incapable of acting shall make provisions for the disposal of any urgent applications by an Additional Sessions Judge. This arrangement can only be made under section 17(4), Cr.P.C. It is made clearer that the arrangement shall only be made for urgent applications. The learned Additional Sessions Judge was absolutely not competent to entertain an application for the withdrawal of the bail petitions already pending in the Court of other learned Additional Sessions Judge and make an order for entrustment to another Additional Sessions Judge. Neither it falls within the terms of urgent matters nor does it fall within the competency of the learned Additional Sessions Judge.
10. The perusal of the record indicates that-the notice was not given to the petitioner while taking decision of withdrawing the bail petition of respondents Nos.2 to 4 and for further entrustment to another Court of learned Additional Sessions Judge, certainly it caused prejudice to the petitioner.
In the absence of the notice, to other party the order would, call for being set aside on this ground alone.
11. In view of what has been discussed above, I hold that the learned Additional Sessions Judge was not competent to withdraw the bail petition from the Court of Mr. A.D. Khalid, learned Additional Sessions Judge nor the order for withdrawal and entrustment of the same to another Court could be made and that too without notice.
12. Resultantly, this revision petition is accepted and the order, dated 25-7-1995, impugned herein, is set aside. The bail petition of respondents Nos.2 to 4 titled as Sheran Khan etc. v. The State shall be deemed pending in the Court of Mr. A.D. Khalid, learned Additional Sessions Judge, Multan. Order accordingly.
Revision .