The issue of transfer of cases from one bench to another in the Islamabad High Court (IHC) has escalated and a division bench has directed the IHC deputy registrar judicial to reassign the transferred cases to the "relevant courts" in view of settled guidelines and High Court Rules and Orders.
The division bench comprising Justice Mohsin Akhtar Kayani and Justice Sardar Ejaz Ishaq Khan has issued an 11-page verdict while hearing a blasphemy case recently transferred to it by the IHC acting chief justice (CJ), Sardar Muhammad Sarfraz Dogar.
The bench noted that according to the Rules and Orders of the Lahore High Court (LHC) -- which regulates the practice of the high court in the hearing of cases and other mattersthere is no specific provision empowering the CJ to assign or reassign cases or to withdraw cases from a single bench and transfer them either to another single bench or to a division bench.
"Though rule 2 of the Part A of Chapter 3 empowers the Hon'ble Chief Justice to approve the roster, prepared by the Deputy Registrar, whether Singly or in Benches of two or more, but assignment of cases to the Single or Division Benches has solely been vested in the Deputy Registrar in terms of rules 3 & 4 of the Chapter ibid," it said.
The order noted that the rules make it crystal clear that vast powers have been given to the deputy registrar to perform judicial business in terms of marking/listing cases. However, no power has been given in the rules even to the deputy registrar to withdraw or transfer any case from any bench.
It stated Chapter-1 Part G Volume-V of the LHC Rules and Orders specifically deals with the establishment of benches and provides that the LHC chief justice may transfer any proceedings pending at the LHC Principal Seat or at a bench to another bench or to the Principal Seat, as deemed expedient.
"The [LHC] Chief Justice may also determine the cases or classes of cases to be disposed of at the Principal Seat or at a Bench. However, such powers could not be exercised in these matters, especially in the IHC, which has no other bench anywhere in Pakistan," it said.
It said the LHC Rules and Orders contain a provision that says that it is the exclusive concern of the chief justice that he may constitute benches, but said Chapter does not provide any further power to assign, reassign, withdraw or transfer cases from one bench to another bench.
"As such Chapter dealing with assignment of cases is Chapter-3 Part A Volume-V, which only provides specific powers to Deputy Registrar (Judicial) to assign the cases to the Single Bench or the Division Bench according to roster approved by the Hon'ble Chief Justice.
"As such if a judge recuses [himself] to hear a case or the case is required to be heard along with connected/interrelated or identical cases, then the Deputy Registrar (Judicial) shall assign the case to some other Bench while considering a number of factors."
It said these factors are required to be considered and conveyed by the deputy registrar (judicial) in writing in the official noting, with justified reasons, for the purpose of marking/assigning any case.
"In this regard, if the Deputy Registrar (Judicial) concludes that a particular case is related to another case pending before a different Bench who has taken cognizance therefore, he must consult with the PS/Reader of the Court to avoid any untoward situation as has been created in the case in hand.
"Although this aspect is not provided in the High Court Rules and Orders, it is necessary to maintain harmony among the different Benches of this Court and with the Hon'ble Chief Justice of the High Court.
"Therefore, it is essential for the Deputy Registrar (Judicial) to place the case before the Senior Judge of the Division Bench or the Larger Bench, who is hearing the matter in order of seniority for his knowledge to avoid any untoward situation among the Judges," it added.
The court noted that the acting CJ has not properly been assisted on the administrative side by the office, which has put this court in an embarrassing situation.
"Therefore, to avoid any such untoward situation in the future, it is necessary to take guidance from the parameters highlighted in the Civil Procedure Code, as well as the High Court Rules and Orders."
The court also stated that in future, these guidelines are required to be considered as a reference when transferring/marking cases by the IHC deputy registrar (judicial).
"[This will remain so] unless a full court provides a view to further settle the High Court Rules and Orders to address such situations, which is the best and proper forum," it added.
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