P L D 1958 Azad J (PLP)

ABDUL HAMID KHAN, J.

The facts giving rise to this second appeal are as under:‑ Shah Muhammad and Muhammad Sharif plaintiffs -respondents brought a suit for pre‑emption against the vendee appellant and others to the effect that the suit land had been sold to the vendee for Rs. 5,200 by sale‑deed dated 7th February 1956 but the consideration had been fictitiously entered as Rs. 6,

000. They prayed that as they had superior right as compared to the vendee, they should be granted a decree for possession of the suit land by pre‑emption on payment of Rs. 5,

200. Of the defendants the vendee Raj Muhammad (appellant) contested the suit on the ground that Rs. 6,000 price of the land was paid to the vendors and that since the vendors had offered to sell the suit land to the plaintiffs and the latter did not avail of the offer and purchase the land they had waived their right to pre‑emption. The Sub‑judge by order dated 18th February 1957, held that payment of Rs.5,200 only to the vendors was proved and that though the bargain for sale of the land was struck between the vendors and the plaintiffs for Rs. 5,000 the vendors went back over the bargain and sold the land to the vendee for Rs. 5,200 without the knowledge of the plaintiffs. He, therefore, granted plaintiffs a decree for pre‑emption on payment of Rs. 5,200 Raj Muhammad, the vendee, went up in appeal to the District judge and among other things also raised the plea that it was beyond the jurisdiction of the Sub‑judge to pass a decree for pre‑emption on payment of Rs. 5,200 when his pecuniary jurisdiction was only Rs. 5,

000. The District Judge by order dated 9th April 1957 did not agree with this conten tion of the vendee for the reason that he had not raised this plea before the Sub‑Judge. The vendee Raj Muhammad has now come up in second appeal against the order of the District judge and has attacked the findings of the Courts below on the following grounds:‑ (a) That the Sub‑judge whose pecuniary limits extended upto Rs. 5,000 could not pass the decree for pre‑emption on payment of Rs. 5,200 (b) That when it was held by the Sub‑Judge that the payment of Rs. 6,000 as price of the land entered in the sale‑deed was not proved, he should have determined the value of the land on the basis of market value. (c) That since offer was made to the plaintiffs by the vendors to purchase the land and they had not purchased it, they had waived their right to pre‑emption. Regarding the plea that the Sub‑Judge had no jurisdiction to grant a decree for pre‑emption on payment of Rs. 5,200, we have to look to section 6 of the Civil P. C. which lays down that‑ Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdic tion over suit the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. It is to be seen now how value of a suit for purposes of jurisdiction is determined in pre‑emption suit. For this we have to look to the rules under section 3 of the Suit Valuation Act. According to these Rules, it is determined at 30 times the land revenue. In the present case the value for purposes of jurisdiction as worked out according to rules comes to Rs. 922‑8‑0 and this is the value entered in the plaint. It is not disputed that it is the valuation in the plaint that determines the jurisdiction. When looked from that point of view, it does not lie in the mouth of the appellant to question the jurisdiction of the Sub‑judge. However, the view of the Punjab High (sic.) Court as expressed in 16 P R 1908 is that where the finding of the Court exceeds its pecuniary limit of jurisdiction, it is not competent to pass the decree but should return the plaint for presentation to a Court with jurisdiction. In the case before their Lordships of the Chief Court of the Punjab, a pre‑emption suit was filed in the Court of a Munsif of the 1st Class for recovery of possession of agricultural land. Its value for purposes of jurisdiction, as laid down by the rules in force under the Suits Valuation Act was Rs.

644. The Munsif whose juris diction was limited to Rs. 1,000 gave a decree on payment of Rs. 9,

098. On objection being taken to the jurisdiction of the Munsif to pass a decree for that amount, it was held, by the Full Bench that the actual value of the land in suit being clearly in excess of the pecuniary limits of the Munsif's jurisdiction he was not competent to pass a decree in the case but should have returned the plaint for presentation to a Court with jurisdiction. The High Courts of Allahabad, Bombay, Calcutta, Madras, Patna, Rangoon and the Courts of the Judicial Commissioners Sind, Nagpur and Oudh held the contrary. In their view, in every case when the Court is seized of jurisdiction, it cannot and does not lose it by any change in the value of the subject‑matter of the suit after the institution of the suit. I, respectfully disagree with the view expressed by their Lordships of the Punjab as it not only does not lay down correct law but it is also sure to lead to uncertainty and inconvenience. When there are definite rules by which to determine the jurisdictional value of a suit as in the present case it would be wrong to say. (b) Criminal Procedure Code (V of 1898), S. 342 Nothing fresh brought out in evidence recorded by Magistrate, after framing of charge‑Magistrate need not put any specific question to accused to explain his conduct. Aminul Hoque v. Crown P L D 1952 F C 63 ref. Muhammad Yahya Cheema for Appellant. Muhammad Sharif Government Advocate for Sarkar. ABDUL HAMID, KHAN J.--‑ This is an appeal against the order of Magistrate 1st Class, Bhimber, dated 24th June 1957 whereby the accused appellant was convicted under section 326, A. P. C. and sentenced to 7 years' rigorous imprisonment and Ks. 1,000 fine or in default of payment of fine to further one year rigorous imprisonment. Brief fact; of the case as alleged by the prosecution are as under :‑ Fazal Din younger brother of Faqar Din accused appellant demanded his share of the property from his elder brother who beat him. Fazal Din took refuge with his cousin Gul Muhammad. Gul Muhammad told Fazal Din that he would get him his share. Faqar Din accused thinking that as Gul Muhammad was a strongman and would get share of the property for Fazal Din, left his village and went to stay with his mother and sister at village Ahi on the afternoon of 19th June 1956. On the day of occurrence, when Gul Muhammad was carrying water from the well he was attacked by Faqar Din accused in a "khad" with an axe. The blow with the axe cut the left leg of Gul Muhammad below the knee. Just at this time Farman Ali and Sher Muhammad P. Ws. Appeared and the accused decamped. This information was given to the Head Constable when he was on a visit in connection with the investigation of another case by Shah Muhammad oil the very day. Since the condition of Gul Muhammad appeared dangerous his statement was also recorded by the Head Constable. The accused denied the charge and pleaded alibi. Since the complainant permanently lost his leg, the Magistrate believing the prosecution evidence convicted and sentenced the accused as stated above. Learned counsel for the petitioner has attacked the finding of the trial Court more on points of law than on merits. The points that he urged in this connection are :‑ (a) that the judgment was pronounced in the absence of the accused and was therefore illegal ; (b) that while recording the statement of the accused under section 342, Criminal P. C. the provisions of the section were not complied with. As regards point (a) it was contended by the learned counsel that the accused had no notice of the date on which judgment was to be announced. To properly appreciate this point of the learned counsel, it is proper to refer to certain interim orders. The order dated 24th May 1957, and the interim orders after that till the judgment was announced are as under : 24‑5‑1957,‑Court Sub‑Inspector and the accused with counsel present. Arguments heard‑for orders on 31‑5‑57. 31‑5‑1957.‑Court Sub‑Inspector and the accused with his counsel present. The Magistrate is on leave. To come up on 10‑6‑1957. 10‑6‑1957.‑Naib Court and the accused with his counsel present. The Magistrate has retired. The new Magistrate has not arrived. To come up on 24‑6‑1957. 17‑6‑1957.‑No one present. I have received orders of retirement and probably on 26th June 1957, Sheikh Abdur Rehman Sahib will take over charge from me. I have recorded the evidence in the case and I have heard the arguments. It is, therefore, proper that I should pronounce judgment in the case. The Court Sub‑Inspector and the accused shall be summoned for 21‑6‑1957. 21‑6‑1957.‑Court Sub‑Inspector present. Accused could not be served. The file should, therefore, come up on 24‑6‑1957. On 24th June 1957, the counsel for the accused was present and had produced a medical certificate that the accused was unwell. As the Magistrate had shortly to quit on account of his retirement he announced orders. The perusal of the interim orders would show that the accused had notice of the date when the judgment was to be announced‑no matter when he was notified the date the Presiding Officer was on leave‑and that is why the counsel for the appellant appeared on the date of hearing and produce the illness certificate of his client. The wording of section 366 Part 3 of Criminal P. C. is as under :‑ (3) "No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place." Even if on account of the absence of the Presiding Officer the date was notified by the concerned ministerial staff of the Court, the defect if any in notifying the date was not fatal to the case, as no judgment delivered by any Criminal Court is to be deemed invalid by reason of any defect in notifying the date on which judgment was to be l announced. I, therefore, hold that in the circumstances explained above there was nothing wrong in pronouncing the judgment in the absence of the accused. As regard the second point, learned counsel for the appellant relies on Aminul Hoque v. Crown (P L D 1952 F C 63), wherein it was held by their

Lordships that section 342.Criminal P.C. enjoins that for the purposes of enabling the accused to explain :‑ any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the judge to call the attention of the accused to the point, and ask for an explanation. In the case before their Lordships the attention of the accused was never invited to the extra‑judicial confession which had been relied upon by the learned Judges of the High Court as a vital piece of evidence. In the present case nothing fresh had been brought out in the evidence recorded by the Magistrate after the framing of the charge, and it was therefore not necessary for the Magistrate to put any specific question to the accused to explain his conduct. I do not dispute the proposition that the whole object of enacting section 342, Criminal P. C. is that the attention of accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. Since there was nothing specific to be asked the accused was in no way prejudiced by the question put to the accused by the Magistrate in a general form. I, therefore, see no force in the contention of the learned counsel for the appellant that since the provisions of section 342, Criminal P. C. had not been property followed by the Magistrate the conviction should be quashed. As regard the merit of the case not much bad been said by the counsel for the appellant. He has tried to show that witnesses in the case are related to the complainant but he ignored the fact that the accused and the complainant are 1st cousins. The witnesses are in no way inimical to the accused and there is no reason to doubt their testimony. The incident was reported to the Head Constable soon after the occurrence and even Gul Muhammad the complainant charged the accused his 1st cousin with the offence. The P. Ws. either saw the accused attacking or decamping from the spot soon after the complainant fell down on the ground injured. The medical evidence corroborates the prosecution version. There is therefore absolutely no doubt that the accused appellant is guilty of the offence of which he had been convicted. His conviction under section 326, A. P. C., is upheld. As for the sentence it appears to be very harsh. Five years' rigorous imprisonment and Rs. 500 fine or in default of payment of fine one year's further rigorous imprisonment would he envoi, to serve the ends of justice. The sentence is, therefore. reduced from 7 years' rigorous imprisonment and Rs. 1,000 fine to 5 years' rigorous imprison ment and Rs. 500 fine or in default of payment of fine to further one year's rigorous imprisonment. Fine if realized shall be paid to the complainant. K. M. A. Appeal dismissed.