LHC tells sessions judges to avoid case transfers

Judgment says frequent transfers of cases ruin judiciary

LAHORE: A full bench of the Lahore High Court has ordered district and sessions judges to avoid transferring cases from one lower court judge to another.

“A district and sessions judge has no authority to transfer a case from one additional district and sessions judge to another court, except [for] entrustment of fresh cases in [an] administrative capacity,” the judgment of the full bench, headed by Justice Sayyed Mazahar Ali Akbar Naqvi, said.

The bench gave this decision on a petition challenging a session judge’s order of withdrawing a bail matter from a court and entrusting the same to another. The petition asked how such orders were passed without referring to facts available on record.

This matter came up for hearing before Justice Sayyed Mazahar Ali Akbar Naqvi. However, keeping in view the peculiar facts and circumstances of the case, coupled with importance of the issue, it was sent to the Chief Justice Lahore High Court for the formation of a full bench.

“The liberty of a person is a precious right, which has been guaranteed by the Constitution of the Islamic Republic of Pakistan 1973. The frequent transfer of bail applications from one court to another, under undue pressure by various lawyers for a favourable decision, has become a practice at the subordinate courts. This practice has already ruined the judicial system of our country, which cannot be allowed to continue,” the petition read.

Counsel for the petitioner, Advocate Syed Farhad Ali Shah, told the court that his client had been behind bars for a case registered under sections 302, 324, 109, 148 and 149 of the PPC, read with Section 7 of the Anti-Terrorism Act 1997 (subsequently deleted). The case was registered with Barki police station.

The petitioner filed his post-arrest bail application before the trial court on January 14, 2019, and the case was entrusted to Additional District and Sessions Judge Zadeem Akhtar Tabassum.

The matter was constantly adjourned on one pretext or the other and the petition remained pending till January 29, the petition claimed.

That was when the judicial officer was transferred and Additional Sessions Judge Fayyaz Ahmad Buttar took charge of the case.  Thereafter, in response to the complainant’s application seeking transfer of the bail petition, a reference was sent to the district and sessions Judge of Lahore.

The bail application was then entrusted to Additional Sessions Judge Sajawal Khanon February 20, 2019. Later, on February 27, 2019, the counsel for the complainant declared that he did not want the matter to be heard by this court.

As a result, another reference was sent, but the learn district and sessions judge Lahore rejected the same on March 1, 2019. This resulted in the bail petition to return to the same Court. However, the matter kept lingering on till March 9,2019.

That was when the complainant stated that he did not trust the particular court in which his case was being heard. This, again, prompted another reference to be sent to the district and sessions judge Lahore.

The case was then entrusted to Additional Sessions Judge Mian Javaid Akram Baitu. Another reference was sent on March 25, 2019, and the matter was finally entrusted to ‘reference’ was also sent by the said learned court on the statement of learned counsel for the complainant. After that the bail application was further entrusted to Additional Sessions Judge Muhammad Nawaz Marth’s court where it is still awaiting adjudication.

Prosecutor general Ihtesham Qadir Shah argued that under Articles 202/203 of the Constitution of the Islamic Republic of Pakistan, the LHC, apart from being a constitutional court, has also been vested with the powers of supervision/superintendence over the performance of all classes of courts in the province. While referring Section 528 of the CrPC, the prosecutor general submitted that the learned district and sessions judge cannot transfer cases pending before the court of additional district and sessions judges. 

Published in The Express Tribune, May 17^th, 2019.