P L D 1959 (W (PLP)

Dates of hearing : 15‑12‑58 and 5‑1‑1959., The facts of this case as alleged by the prosecution are that in the year 1947 a cotton ginning and pressing factory situated at Arifwala, District Montgomery, and previously owned by non‑Muslims, was allotted by the Director of Industries, Punjab, to the firm Messrs Ghulam Farid Muhammad Latif, Lahore, the managing director of which is one Mian Muhammad Rashid. The said firm submitted claims totalling Rs. 31,547‑4‑0 in respect of repairs alleged to have been carried out to the machinery of the factory, the claims in question being supported by false documents. Sanction was accorded by the Governor of the then Punjab through the Home Secretary to Government, Punjab, to the prosecution of the partners of the firm, seven in number under section 120‑B P. P. C., but in addition to the above offence, the accused are also alleged to be guilty of offences under sections 465, 467, 468, 471 and 420/511 of the Penal Code. A number of cases were brought, this order being concerned with seven, namely, Nos. 3, 4, 9, 15, 16, 17 and 23 of 1958 in the Court of the learned Special Magistrate.

2. When the above cases came up for hearing, two pre liminary objections were raised by the defence challenging the jurisdiction of the Court. Both were overruled by the learned Special Magistrate by his order dated the 29th of September 1958, against which this revision petition has been filed.

3. The first of the objections is based on the provisions of sections 4 and 26 of Ordinance XV of 1949, corresponding to sections 5 and 33 of Act XII. of 1957. Section 4 of the said Ordinance runs :‑ "The provisions of this Ordinance, and any rule or order made thereunder shall have effect notwithstanding anything in consistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law." Clause (b) of section 26 of the Ordinance provides that any person who furnishes any return, account or information which is material to any of the purposes of the Ordinance and which is false or which he either knows or has reason to believe to be false or does not believe to be true, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. The argument advanced by the defence is that since section 26 has created a new offence, to prosecute an accused under any section of the Penal Code within the orbit of which the illegal act also falls would be inconsistent with the provisions of the Ordinance. This contention was rightly repelled by the learned Special Magistrate. Two ideas or beliefs are only inconsistent when both cannot be true, and it is clear that one and the same act can constitute an offence both under section 26 of the Ordinance and under the Penal Code. It cannot, therefore, be considered inconsistent with the provisions of the Ordinance to prosecute an accused under the Code instead of under the Ordinance, section 26 of the General Clauses Act, (X of 1897) having been enacted for the express purpose of dealing with such .a situation. Looking at the matter from a different angle, the object of the legislature in enacting section 26 of Ordinance XV of 1949 was not to override the Penal Code but to supplement it by making punishable an act committed in. relation to evacuee property which might, but for the provisions of section 26, be no offence.

4. It is also apparent that one of the sections of the Penal Code under which the petitioners have been prosecuted, namely, section 420, deals with an offence of a different kind from that created by section 26 of the Ordinance. To file a false account in respect of evacuee property would not by itself constitute the offence of cheating, it being further necessary that the object of submitting the account should be to induce the person declined to do or omit to do anything which he would not do or omit if he were not so deceived, or alternatively to induce the person so deceived to deliver any property to any person.

5. The second objection raised by the petitioners has been rightly characterised by the learned Special Magistrate as ingenious. It is to the effect that since, according to the prosecu tion, the petitioners carried out repairs to evacuee property, one of the questions arising will be whether, assuming the repairs to have been carried out, the accretions to that property them selves become evacuee property, but though ingenious, the argument is entirely without substance. On analysis, it is evident that the real question at issue before the learned Special Magis trate is not the nature of the property, but whether the repairs in respect of which the petitioners submitted bills were actually carried out. If they were, and if the bills were genuine, the case against the petitioners must automatically fail, irrespective of whether the property was evacuee or non‑evacuee. If, on the other hand, the repairs were not effected, the nature of the pro perty would only be relevant if the petitioners were sought to be prosecuted under section 26 of the Ordinance. The provisions of section 34 of the Ordinance, to the effect that save as expressly provided in the Ordinance, no Civil or Revenue Court or any other authority shall have jurisdiction to entertain or adjudicate upon any question arising in any proceedings as to whether any property is or is not evacuee property, cannot consequently help the petitioners, since the question of their guilt or innocence can be decided without entertaining or adjudicating upon any such question.

6. In support of their arguments, the petitioners cited three authorities. The first of these, Malik Muhammad Sharif v. The Crown (P L D 1954 Lah. 640), does not help them. That case related to an order passed by a Magistrate under section 145 of the Code of Criminal Procedure directing delivery of certain evacuee property to a person without reference to the Custodian. In the present case, on the other hand, the functions of the Custodian have been in no way usurped.

7. The next authority relied upon is Punjab Province v. Sita Ram (P L D 1956 F C 157). This decision only helps the petitioners to the extent of holding that the words "or any other authority" in section 34 (i) of the Ordinance are in themselves of such wide import as to include even the Judicial Committee of the Privy Council, which by implication means that a Criminal Court must also be included in the expression "any other authority". On the other band, the learned Judges also held that it is well recognised that general words in a later enactment do not indirectly repeal particular provisions in an early enactment made for quite a different purpose, and that section 34 of the Ordinance is to be read along with section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950, in such a way as not to conflict with each other or to result in the abrogation of the one or the other. The petitioners relied on the observations of Akram, J. in the above case that as a general rule, where by a new 'legislation certain rights and liabilities are created and at the same time a special remedy for enforcing them is prescribed, that particular form of remedy alone is to be availed of, but this principle cannot be interpreted as meaning that the creation of new rights and liabilities has the effect of extinguishing rights and liabilities already existing. In other words, the mere fact that section 26 of the Ordinance has created a new offence, for a prosecution under which the sanction of the Custodian of Evacuee Property is necessary, does not mean that any parallel offences under the Penal Code are to be considered as having been thereby abrogated, just as section 34 of the Ordinance is to be read with section 4 of the Privy Council (Abolition of Jurisdiction) Act in such a way that one does not conflict with or abrogate the other.

8. The remaining decision relied upon by the petitioners is Mohanlal Saksena v. Emperor (A I R 1930 Oudh 497), but it is also of no assistance to them. The facts of that case were that a certain act which was not an offence under the Penal Code was converted into an offence by the Salt Act (1882) and section 9 of the said Act further prescribed a specific punishment for the abetment of the offence in question, such punishment being lighter than that provided by section 117 of the Penal Code. The learned Judges held that to proceed under section 117 of the Code instead of under section 9 of the Salt Act was illegal. This authority has consequently no application to the facts of the present case.

9. For the above reasons, I hold that there is no force in this petition, which is accordingly dismissed. A. H. Petition dismissed.