1993 PLP 1475 (SCMR)
Dr. ABDUL AZIZ KHAN BABAR‑‑‑Petitioner Versus SALAHUDDIN KHAN and another‑‑‑Respondents
| Citation | 1993 PLP 1475 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Nasim Hasan Shah and Saleem Akthar, JJ |
| Parties | Dr. ABDUL AZIZ KHAN BABAR‑‑‑Petitioner Versus SALAHUDDIN KHAN and another‑‑‑Respondents |
| Primary Law | Criminal Procedure Code (V of 1898)‑‑‑ |
Q1: What are the key laws and sections cited in 1993 PLP 1475 (SCMR)?
This judgment primarily cites: Criminal Procedure Code (V of 1898)‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1993 PLP 1475 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Nasim Hasan Shah and Saleem Akthar, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1993 PLP 1475 (SCMR) (Dr. ABDUL AZIZ KHAN BABAR‑‑‑Petitioner Versus SALAHUDDIN KHAN and another‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ch. Muhammad Bakhsh, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
- Nemo for Respondents.
- Date of hearing: 11th April, 1993.
- 2. The petitioner had filed two separate criminal complaints against the respondents and others including public servants under sections 420, 467, 468 and 471/34, P.P.C. The main allegation against the accused was that they have committed forgery and preparation. of forged documents by deceiving petitioner's wife and tampering with Government records in the L.DA. and Excise and Taxation Department, Lahore, in respect of House No. 16‑E‑I, Gulberg‑III, Lahore, belonging to and in possession of the petitioner's wife. These complaints were filed on 27‑9‑1978 and 4‑10‑1978. The learned Magistrate sent for inquiry to the police under section 202, Cr.P.C. after which he took cognizance of the matter. The case was then transferred to another Magistrate before whom respondent No.1 moved an application under section 249‑A, Cr.P.C. alleging that the offences under sections 420, 467, 468 and 471, P.P.C. were scheduled offences under Pakistan Criminal Law Amendment Act, 1958, and therefore under section 5 of that Act were exclusively triable by the Special Judge and not by a Magistrate. He prayed for acquittal under section 249‑A, Cr.P.C. The learned Magistrate by his order, dated 29‑7‑1980 holding that the offences were exclusively triable by the Special Judge and he did not have jurisdiction to adjudicate in the matter, ordered acquittal of the accused persons under section 249‑A, Cr.P.C. as the complaint was not maintainable. The petitioner filed revision application against the order before the Sessions Judge, Lahore, in which a preliminary objection was taken that an order of acquittal having been passed in private complaint cases, revision petition was not competent as under section 439(5), Cr.P.C. where an appeal lies under the Code of Criminal Procedure, and no appeal is brought, revision application will not be maintainable at the instance of the party who could have appealed. The learned Sessions Judge held that although the Magistrate had no jurisdiction he passed order of acquittal which was appealable under section 417, Cr.P.C. and therefore the revision petition was not competent. The petitioner filed a Constitution Petition against this order which was treated as an appeal by the High Court. This appeal was dismissed for non‑prosecution by order, dated 29‑9‑1984. The petitioner filed application for restoration of the appeal pleading that in the year 1983 he went abroad and came back to Pakistan in the year 1987 and waited for fixation of the aforesaid appeal, but as no notice was received by the petitioner till 21‑3‑1989, he engaged Mr. Chaudhry Muhammad Bakhsh, Advocate, who on inspection informed that the appeal. had been dismissed in default on 29‑9‑1984. This application was dismissed by the impugned order, dated 30‑6‑1992.
Headnotes / Summary
(On appeal from the judgment of the Lahore High Court, dated 30‑6‑1992 passed in Criminal Miscellaneous No. 373/M/1989). Muhammad Ashiq Faqir v. State PLD 1970 SC 117 and Muhammad Bakhsh v. State 1986 SCMR 59 ref.
Judgment & Decree
SALEEM AKHTAR, J.‑‑‑The petitioner seeks leave to appeal against the order of the learned Judge in Chambers, dated 30‑6‑1992 whereby his application seeking restoration of the dismissal of his petition for special leave to appeal was dismissed.
2. The petitioner had filed two separate criminal complaints against the respondents and others including public servants under sections 420, 467, 468 and 471/34, P.P.C. The main allegation against the accused was that they have committed forgery and preparation. of forged documents by deceiving petitioner's wife and tampering with Government records in the L.DA. and Excise and Taxation Department, Lahore, in respect of House No. 16‑E‑I, Gulberg‑III, Lahore, belonging to and in possession of the petitioner's wife. These complaints were filed on 27‑9‑1978 and 4‑10‑1978. The learned Magistrate sent for inquiry to the police under section 202, Cr.P.C. after which he took cognizance of the matter. The case was then transferred to another Magistrate before whom respondent No.1 moved an application under section 249‑A, Cr.P.C. alleging that the offences under sections 420, 467, 468 and 471, P.P.C. were scheduled offences under Pakistan Criminal Law Amendment Act, 1958, and therefore under section 5 of that Act were exclusively triable by the Special Judge and not by a Magistrate. He prayed for acquittal under section 249‑A, Cr.P.C. The learned Magistrate by his order, dated 29‑7‑1980 holding that the offences were exclusively triable by the Special Judge and he did not have jurisdiction to adjudicate in the matter, ordered acquittal of the accused persons under section 249‑A, Cr.P.C. as the complaint was not maintainable. The petitioner filed revision application against the order before the Sessions Judge, Lahore, in which a preliminary objection was taken that an order of acquittal having been passed in private complaint cases, revision petition was not competent as under section 439(5), Cr.P.C. where an appeal lies under the Code of Criminal Procedure, and no appeal is brought, revision application will not be maintainable at the instance of the party who could have appealed. The learned Sessions Judge held that although the Magistrate had no jurisdiction he passed order of acquittal which was appealable under section 417, Cr.P.C. and therefore the revision petition was not competent. The petitioner filed a Constitution Petition against this order which was treated as an appeal by the High Court. This appeal was dismissed for non‑prosecution by order, dated 29‑9‑1984. The petitioner filed application for restoration of the appeal pleading that in the year 1983 he went abroad and came back to Pakistan in the year 1987 and waited for fixation of the aforesaid appeal, but as no notice was received by the petitioner till 21‑3‑1989, he engaged Mr. Chaudhry Muhammad Bakhsh, Advocate, who on inspection informed that the appeal. had been dismissed in default on 29‑9‑1984. This application was dismissed by the impugned order, dated 30‑6‑1992.
3. The learned counsel for the petitioner has contended that no notice for hearing on 30‑6‑1992 was served on the petitioner who was appearing in person. The learned counsel with reference to the cause list contended that the names were not correctly printed and therefore in these circumstances sufficient ground had been made for restoration of the appeal. The learned counsel further contended that a criminal appeal cannot be dismissed for default and even in the absence of the appellant it should be decided on merits. The learned counsel has relied on Muhammad Ashiq Faqir v. State PLD 1970 SC 177 and Muhammad Bakhsh v. State 1986 SCMR
59. We grant leave to consider this question. M.BA./A‑1007/S???????????????????????????????????????????????????????????????????????????????? Leave granted.