P L D 1965 (W (PLP)

A. R. Kazi and Mumtaz Hussain for the State. Cr. Revision Application No. 136 of 1962 G. M. Shah for Petitioner. Tufail Ali for Respondents Nos. 1 and

2. Mohsin Raza for Respondent No.

3. Date of hearing: 7th December 1964. Two Criminal Revision Applications Nos. 455 of 1961 and 136 of 1962, which arise out of the same judgment given by the learned Special Judge on the 30th of September 1961, have been placed before me for disposal. Criminal Revision Application No. 455 of 1961, has been filed by Syed Shaukat Hussain Rizvi for setting aside the order passed by the learned Special Judge against him whereas Criminal Revision Application No. 136 of 1962, has been file13 by Mst. Nur Jehan against Syed Shaukat Hussain Rizvi and others against the judgment of acquittal passed by the learned Special Judge. I will dispose of both these revision applications under this judgment.

2. The facts giving rise to these revision applications are that Syed Shaukat Hussain Rizvi and Mst. Nur Jehan had married in Bombay and had migrated to Pakistan in 1947. They had two sons and one daughter. On their coming to Karachi a bungalow No. 234 (Sunshine Villa) in Garden East, Karachi, was purchased for Rs. 50,000 which was registered in the name of Mst. Nur Jehan. It is alleged that about Rs. 60,000 were spent on the renovation of this bungalow. Somehow both of them left for Lahore in the year 1949, where they started a studio under the name of Shahnur in which Mst. Nur Jehan is alleged to have invested to the tune of about Rs. 3,00,

000. The relations between the husband and the wife, however, got strained in the year 1955, on account of which Mst. Nur Jehan left her husband's house with all the three children. Two of the sons came back to the father whereas the girl, Huma, remained with Mst. Nur Jehan. Syed Shaukat Hussain Rizvi consequently filed an application for the custody of the girl under Guardian and Wards Act. Mst. Nur Jehan also went in for litigation in respect of Shahnur Studio. Both these matters were decided in favour of Mst. Nur Jehan by the lower Court against which Syed Shaukat Hussain Rizvi went in appeal before the West Pakistan High Court at Lahore. The case of Mst. Nur Jehan is that Syed Shaukat Hussain Rizvi on the promulgation of the Martial Law approached her for a compromise and agreed to withdraw his appeal regarding the custody of the girl. She also alleged that Syed Shaukat Hussain Rizvi had promised to allow the girl to remain with her. In the bargain Mst. Nur Jehan allegedly agreed to withdraw the liquidation proceedings and also to execute a gift deed in favour of Syed Shaukat Hussain Rizvi in respect of Bungalow No. 234, Garden East, Karachi, mentioned above. The gift deed, Exh. 5, is accordingly said to have been executed on the 1st November 1958, between the parties and signed by them under which Bungalow No. 234 was purported to be gifted to Syed Shaukat Hussain Rizvi. This gift deed required registration but was not registered within a period of 4 months during which it required to be registered. Syed Wasiul Hasan, sister's son of Syed Shaukat Hussain Rizvi thereafter was appointed as an attorney by Mst. Nur Jehan on 2nd December 1958. A General Power-of-Attorney Exh. 7 was executed. Syed Shaukat Hussain Rizvi on the 1st of April 1959, put the date `1-4-59', under his signature on gift deed Exh. 5 and got it registered through Mr. M. S. Jalil, the District Registrar, Wasiul Hasan being the attorney for Mst. Nur Jehan appearing on her behalf. Mst. Noor Jehan on coming to know that the gift deed Exh. 5 had been registered in total disregard of the agreement made by Syed Shaukat Hussain Rizvi made an application to the Inspector General of Police at Karachi, Exh. 8 on the 15th of April 1960, in which she made a prayer for an action being taken against Syed Shaukat Hussain and others. This application of Mst. Nur Jehan was incorporated as First Information Report in the book maintained under section 154, Cr. P. C., as Exh.

54. The police after investigating the case registered on the application of Mst. Nur Jehan filed a Challan against Syed Shaukat Hussain Rizvi, Wasiul Hasan and M. S. Jalil under sections 420, 468 and 471 read with sections 109 and 120-B, P. P. C. and 81 and 82 of the Registration Act. The learned Special Judge, Karachi before whom the accused were tried gave a judgment of acquittal Exh. 72 on the 30th September 1961, in which while acquitting all the accused he held the accused Shaukat Hussain Rizvi guilty under sections 193 and 196, P. P. C. and directed his prosecution before the City Magistrate, Karachi. The relevant part of his judgment which deals with this part of the case reads as under: "My discussion of the whole case has shown that accused Shaukat Hussain is quite guilty for offences under sections 193 and 196, P. P. C. and section 82 (d) of the Registration Act XVI of 1908. As regards accused Shaukat Hussain, I cannot take any action in the matter against him under section 82 (d) of the Registration Act as the prosecution has not been commenced by or with the permission of the Registration Authority as required by section 83 of the Registration Act. As regards the offence under sections 193 and 196, P. P. C., the learned defence Advocate for this accused has urged that in view of section 195, Cr. P. C. this Court cannot take cognizance as there is no complaint of the Registrar. This legal view is quite erroneous. Under clause (2) of section 195 this protection. does not avail of in case of a Registrar or Sub-Registrar under the Registration Act. Under section 6 (4) of the Pakistan Criminal Law Amendment Act XL of 1958, the Special Judge has jurisdiction to convict the accused of an offence, which from the facts admitted or proved, the accused appears to have committed. This provision of law has been interpreted in P L D 1959 Dacca 617, as meaning that this subsection means that the Special Judge may convict the accused of an offence specified in the Schedule to the Act, which from the facts admitted or proved, the accused appears to have committed although he was charged under some other offence, specified in the same Schedule. This rule further says that this subsection does not mean that the Special Judge has jurisdiction to convict the accused of an offence of the Pakistan Penal Code other than the offences specified in the Schedule to the Act. Offences under sections 193 and 196, P. P. C., are not specified in the Schedule. I cannot, therefore, record any conviction or sentence. 1, therefore, direct that the accused Shaukat Hussain should appear before the City Magistrate, Karachi, on 23rd October 1961, for trial by him for offences under sections 193 and 196, P. P. C. He should execute P. R. in the sum of Rs. 5,000 to appear before the City Magistrate, Karachi."

3. It is against this order of the learned Special Judge, Karachi, that these revision applications have been moved. I will take up Criminal Revision Application No. 455/61 first in which the points taken by the learned Advocate for the petitioner are: (1) that the Special Judge had no authority to direct trial of the accused before a Court which though inferior was not subordinate to him; and (2) that the charge under sections 193 and 196, P. P. C., for which prosecution has been directed by the learned Special Judge could on the facts disclosed before him and even on the statement of facts put to the accused be framed under section 236, Cr. P. C. and as such the judgment of acquittal given by the learned Sessions Judge would be hit by section 403, Cr. P. C. and would consequently be a bar to prosecution of the accused under sections 193 and 196, P. P. C. The learned counsel for the State supports the Revision Application No. 455 of 1961, and is of the view that the order of the prosecution of the petitioner under sections 193 and 196 is illegal.

4. The learned Special Judge, admittedly, is functioning under the Pakistan Criminal Law (Amendment) Act, 1958 and derives power by virtue of what is contained in that Act. Pakistan Criminal Law (Amendment) Act, 1958 is a comprehensive and self-contained Act and lays down both the powers of the Special Judge as well as the procedure under which the cases would be tried by him. There is no provision in the Pakistan Criminal Law (Amendment) Act of 1958, under which the learned Special Judge was empowered to pass an order of the type questioned in this revision application. The learned Special Judge in my opinion had no power to direct prosecution of the accused for offences which according to him on facts and evidence before him were established while he was conducting trial of the accused in respect of other offences. The learned Special Judge had also no power to direct the City Magistrate to take cognizance of the offences under sections 193 and 196, P. P. C. He had also no power to direct the Assistant Public Prosecutor to appear before the City Magistrate and conduct the case. He had also no power to take security from the petitioner for his appearance before the City Magistrate. All the orders detailed above are foreign to what is contained in the Pakistan Criminal Law (Amend ment) Act of 1958, and as such are unauthorised and without juris diction. My view that the learned Special Judge had no power to pass these orders is supplemented by a clear provision appearing in section 6 (4) of the Pakistan Criminal Law (Amendment) Act under which the Special Judge is authorised to convict the accused of any offence which on facts is proved although no specific charge has been framed against him in regard to that offence. With this provision subsisting it cannot by any stretch of imagination be held that the Special Judge can, when finding that on facts and evidence before him certain offences has been proved, direct the prosecution of that person before any other Court. The City Magistrate also under the Pakistan Criminal Law (Amendment) Act is not subordinate to the Special Judge and the Special Judge as such even under the Code of Criminal Procedure has no power to direct prosecution of any person before a Court which is not inferior to him. Apart from the legal position in this case that the Special Judge had no power whatever to pass the order of the type he has passed, he has also left no scope for the City Magistrate to carry on with the trial without any prejudice against the petitioner. The learned Special Judge has at a number of places in his judgment said clearly that the petitioner is guilty of offences under sections 193 and 196, P. P. C. It is not possible to conceive of a case where a superior Court would direct prosecution of any person after having held him guilty for the offences for which prosecution is ordered. Even if it be assumed that the Special Judge had the power to order prosecution the manner in which it has been ordered can never be upheld, by a Court of superior jurisdiction. It is not possible for the City Magistrate, his Court being of inferior jurisdiction, to take a view different from the view taken by the learned Special Judge that the accused is not guilty of the offences under sections 193 and 196, P. P. C. The Courts of Law have never allowed such farcical prosecutions to be permitted. Even otherwise this case had started on a complaint filed as far back as 1960. The order of the prosecution of the petitioner emerges from the judgment delivered by the learned Special Judge on the 30th September 1961. The petitioner has faced his trial and the consequent proceedings for nearly four years and as such even on this count it will not be fair to permit prosecution ordered by the learned Special Judge to be pursued.

5. On the view taken by me that the order of the learned Special Judge is without jurisdiction I accept this revision application and set aside the order passed by the learned Special Judge under which the petitioner was ordered to be prosecuted before the City Magistrate for offences under sections 193 and 196, P. P. C.

6. Revision Application No. 136 of 1962, has, as I have already stated, been filed for setting aside the judgment of acquittal passed by the learned Special Judge and ordering a retrial. The judgment ' in question was considered by the Government and it was decided that the Government would not file an appeal against acquittal. This revision application has been vehemently opposed by the learned counsel for the State. The only ground taken in this revision application by the learned counsel for the petitioner is that the acquittal of the respondents of the offences with which they had been charged by the learned Special Judge is bad in view of his finding that respondent Syed Shaukat Hussain Rizvi was held guilty of the offences under sections 193 and 196, P. P. C., I have already held in Revision Application No. 455 of 1961, that the order passed by the learned Special Judge holding Syed Shaukat Hussain Rizvi to be guilty under sections 193 and 196, P. P. C., and directing his prosecution was illegal. Apart from that, the learned Special Judge while discussing Point No. 1 from the points of determination framed by him in his judgment has been clearly of the view that Syed Shaukat Hussain Rizvi had not induced fraudulently or dishonestly Mst. Nur Jehanto execute the gift deed in his favour. He was on the contrary of the view that the money paid for the purchase of the bungalow was paid by Syed Shaukat Hussain Rizvi and has, therefore, indirectly held that the transaction of the bungalow in favour of Mst. Nur Jehan was benami. This finding of the learned Special Judge has not been questioned. I also find nothing wrong with the finding given by the learned Special Judge. If the argument of the learned counsel were allowed to prevail that the revision application should be allowed and a retrial of the respondents ordered merely because the learned Special Judge has held Syed Shaukat Hussain Rizvi guilty of offences under sections 193 and 196, P. P. C., then the order passed by this Court will amount to a direction to the subordinate Court to convict Syed Shaukat Hussain Rizvi and others for the offences with which they have been charged. The learned counsel for the petitioner, however, has not been able to show as to what is wrong with the arguments advanced by the learned Special Judge for giving a judgment of acquittal in respect of respondents Wasiul Hassan and M. S. Jalil. In view of the fact that there are no grounds for ordering a retrial in the case and in view also of the fact that the Government did not choose to file an appeal I see no reason for granting this application. The learned counsel for the State has also opposed this revision application as stated above. Under these circumstances, the revision application filed by the petitioner stands dismissed. K.B.A. Petition rejected.