P L D 1964 (W (PLP)

Zia Muhammad Mirza for Appellant. Anwar Ahmad Waraich for the State. Dates of hearing : 31st January, 3rd and 10th February and 25th and 27th March 1964. Mufti Habib Ahmad of Sialkot City was convicted for an offence under section 498, P. P. C. by Magistrate 1st Class, Sialkot, on the 6th of July 1962. He filed an appeal which was dismissed by the Additional Sessions Judge, Sialkot, by his order dated the 31st of October 1962. In the last paragraph of his judgment the learned Additional Sessions Judge, Sialkot, in exercise of his powers under section 476-A, Cr. P. C. directed the prosecution of Muhammad Yaqub (D. W. 12) for offences under sections 181, 191, 196 and 199, P. P. C. One of the prosecution witnesses Najma Bokhari was also ordered by the Additional Sessions Judge to be prosecuted under these offences but I am not concerned so far as her prosecution is concerned as the order of the learned Additional Sessions Judge has been contested by Muhammad Yaqub appellant only. Habib Ahmad had filed a revision petition against his conviction which was accepted by my learned brother Mr. Justice Sajjad Ahmad Jan. While disposing of the revision petition my learned brother held inter alia that the story of the marriage of Habib Ahmad with Mst. Najma Bokhari alleged to have taken place on the 10th of August 1958, vide Exh. D. R. was false. Muhammad Yaqub appellant claimed to have performed this Nikah ceremony. My learned brother was of the view that having given that finding as regards the alleged marriage of Habib Ahmad with Mst. Najma Bokhari it would not be fair for him to deal with the appeal of Muhammad Yaqub, consequently the appeal was submitted to my Lord the Chief Justice for being entrusted to some other Judge and his Lordship was pleased to order that I should hear this appeal.

2. I have heard the learned counsel for the parties. The learned counsel for the appellant leas trot challenged the order of the prosecution of the appellant on merits. His contention is that the appellate Court while exercising the powers under section 476-A, Cr. P. C. has to comply with the provisions of section 476, Cr. P. C. That under section 476, Cr. P. C., it is incumbent upon the Court ordering prosecution to record a finding that in the opinion of that Court it was expedient in the interest of justice that an enquiry should by made into any offence referred to in section 195, subsection (1), clause (b) or (c) which appeared to have been committed in or in relation to the proceeding in that Court. That in the present case the learned Additional Sessions Judge leas nowi2Are recorded such a finding and consequently the order of prosecution was bad. The learned counsel for the respondent contended that although it was not said in so many words but the learned Additional Sessions Judge had passed the order of prosecution after he was satisfied that it was in the interest of justice to hold an inquiry against Muhammad Yaqub. It has been further urged gnat 1 should while hearing this appeal decide whether in the circum stances of this case, it was or was not expedient in the interest of justice to order an inquiry against Muhammad Yaqub appel lant. The learned counsel for the appellant in reply contended that while hearing an appeal I could not pass such an order and rectify the defect in the order of prosecution passed by the learned Additional Sessions Judge.

3. The wording of section 476-A, Cr. P. C. make it clear that the Court ordering a prosecution has to come to a definite finding that it was expedient in the Interest of justice that an enquiry should be made in respect of the offence alleged to have been committed. Undoubtedly the Court should order a prosecution only in the interest of justice and not to satisfy the private grudge of a litigant. In these proceedings the Court has not to decide the question of guilt or innocence of the party against whom proceedings are taken but before setting Criminal Law in motion the Court should exercise great care and it must be satisfied that there is reasonable foundation for the charge in respect of which the prosecution is ordered and that it was in the interest of justice to order such a prosecution. A perusal of the judgment of the learned Additional Sessions Judge shows that he very minutely considered the evidence of the appellant, who appeared as D. W. 12 and stated that he had performed the Nikah ceremony of Habib Ahmad with Mst. Najma Bokhari on the 10th of August 1958 and that he had signed the Nikah Nama Exh. D. R. which was prepared at the time of Nikah. The trial Court as well as the learned Additional Sessions Judge in appeal, came to the con clusion that Mst. Najma Bokhari was never married to Habib Ahmad and that the statement of Muhammad Yaqub appellant was false. The same is the conclusion arrived at by my learned brother Sajjad Ahmad Jan while disposing of the revision petition of Habib Ahmad. Muhammad Yaqub appellant claimed to be the Khareeb of Jamia Masjid Mohallah Rangpura, Sialkot. The learned Additional Sessions Judge after discussing, the evidence of appellant came to the conclusion that the appellant be prosecuted for the offences mentioned in the order. Although the learned Additional Sessions Judge has not said in so man words but his order clearly indicates that he was of the opinion that if a Khateeb of a Masjid comes forward to depose falsely on such an important point as the marriage of a girl with another person, it would be in the interest of justice to order the prosecution of such a witness. I feel that the order of the learned Additional Sessions Judge shows undoubtedly that he ordered the prosecution after he was satisfied that it was in the Interest of justice that a prosecution should be ordered. As regards the contention of the learned counsel for the State the tea I should while bearing this appeal decide for myself whether in the circumstances of this case, it was in the interest of justice to order the prosecution of the appellant, the learned counsel for the appellant relying on Dhampat Rai v. Balak Ram (33 Cr. L J 178) and Munni Lal v. Emperor (A I R 1937 All. 305) argued that the powers of an appellate Court were restricted under section 476-B, Cr. P. C. and this course was not open to me. That under section 476-B, Cr. P. C the appellate Court could only direct the withdrawal of the complaint filed under section 476 or section 476-A, Cr. P. C. or it could itself make the complaint which the subordinate Court should have made. It is contended that the appellate Court cannot rectify the mistake committed by a Court in passing a proper order under section 476 or section 476-A, Cr P. C. I do not agree with this contention of the learned counsel for the appellant. If the appellate Court, on perusal of the record, is satisfied that it is expedient in the interest of justice that an enquiry should be made into any offences referred to in section 195, subsection (1), clause (b) or (c) which appeared to have been committed in relation to a proceeding in a Court, there is no reason why the appellate Court cannot pass such an order I am supported in this view by the very authority of the Full Bench 33, Criminal Law Journal page 178 cited by the learned counsel for the appellant. The question 2 (a) before the FUJI Bench was as follows:

"Can the appellate Court order a remand and direct the trial Court to make a preliminary enquiry and come to a fresh decision on the question of making a complaint ?" The reply to this question has been given as follows:- "As regards 2 (a) it would seem to me to follow almost logically that if the revision lies under section 439, Criminal Procedure Code, the procedure on appeal under section 476-B must be procedure on an appeal under the Criminal Procedure Code. It follows, therefore, that as that Code provides for no remand, the appellate Court cannot make a remand to the trial Court, but I would add that it seems clear to me that the appellate Court may itself make at, inquiry in a case where it comes to the conclusion either that the trial Court has made no preliminary inquiry at all, or has made a defective enquiry. This power would seem to me to follow from the power given to the appellate Court to make or not make a complaint itself or to withdraw a complaint already made" In the present case, I am satisfied that it is expedient in the interest of justice that an enquiry should be made into the offences under sections 193. 196, and 199, P. P. C. and I would, therefore, direct that the appellant be tried for the above mentioned offences. The appeal is accordingly dismissed. K. B. A. Appeal dismissed.