1989 P Cr (PLP)

Syed Nabi Raza for Appellant., Rasheed Akhund for Respondents. Date of hearing: 24th September, 1985. ABDUL QADEER CHAUDHRY, J.‑‑ This criminal acquittal appeal is directed against the order of A.C.M. XVI (South) Karachi dated 29‑7‑1984. The facts in brief are that Karimuddinn filed a private complaint under section 448/380/34, P.P.C. against Bachayo and Rafique wherein it is stated that these accused have trespassed in his shop and took the goods worth Rs.50,

000. The complaint was entertained and the charge was framed. The accused denied the allegation. The complainant produced six witnesses namely, Karimuddinn, complainant, Lal Muhammad, Malik Muhammad Khalid, Khurshid Ali, Adam and Chaman. The accused in the statements under section 342, Cr.P.C. refuted the allegations and produced four defence witnesses. The learned Magistrate on the assessment of the evidence came to the conclusion that the charge has not been proved against the accused beyond reasonable doubt and giving them the benefit of doubt acquitted them under section 245(1), Cr.P.C.

2. The first contention made by the learned counsel for the appellant is that the case was exclusively triable under the provisions of Hudood Ordinance, 1979 which came into force on 10‑2‑1979 and therefore, the entire proceedings before the Court were without jurisdiction and on this short ground the appeal be accepted and case be remanded to the proper forum for trial. The learned counsel has relied upon section 3 of the Ordinance which prescribes that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force......This argument has no substance. The date of incident is stated to be 5‑8‑1979. The complaint was filed on 16‑8 1979 and the second proviso was substituted by the Amendment Ordinance XIX of 1980. The proviso to section 24(2) was added by means of Ordinance XIX of 1980, which was published in the Gazette on 21‑6‑1980 and according to this proviso an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code. Therefore, when the complaint was filed the Magistrate had the jurisdiction to try the case. In the case of Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others reported in 1979 S C M R 484 it has been observed that `as to the last contention that in view of the promulgation of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, all the Courts, other than those established under the Ordinance, have lost jurisdiction to try an offence, of theft, the learned Judge in the High Court again appears to us to be right in observing that this Ordinance has not established any new hierarchy of Courts, in spite of the fact that section 3 thereof enjoins that the provisions of the Ordinance shall have effect notwithstanding any thing contained in any other law for the time being in force. Under sections 23 and 24 of the Ordinance certain provisions of the Pakistan Penal Code and of the Criminal Procedure Code respectively have been made applicable to trial under the Ordinance; and under section 25 thereof it has been provided that the Presiding Officer of the Court by which a case is triable, or an appeal is heard under this Ordinance shall be a Muslim provided that if the accused is a non‑Muslim, the Presiding Officer may be a non‑Muslim. We have not been able to discover any provision in the Ordinance setting up a Special Court or Courts of exclusive jurisdiction for the trial of the offences made liable to the imposition of the Hudood as specified in the Ordinance. It follows, therefore, that these punishments can be awarded by the existing Courts of competent jurisdiction. The Courts of special jurisdiction have been constituted subsequently and at the relevant time the learned Magistrate had the jurisdiction to try the case under the provisions of Pakistan Penal Code. Learned counsel for the appellant has also referred to the case of Latif and another v. The State reported in P L D 1981 FSC 108 but this authority does not apply to the facts of the present case.

3. The appellant himself filed the complaint in the Court of the learner Magistrate and submitted to the jurisdiction of the Court. He produced witnessed; in support of his allegation and when the case was decided against him he raised the present objection of jurisdiction. As he himself submitted to the jurisdiction of the Court therefore, he cannot be permitted to raise the question o: jurisdiction. In this context section 6 of the General Clauses Act is also relevant.

4. Even on merits the appellant has no case. The learned Magistrate has properly scrutinized the evidence and came to the correct conclusion. The complainant had deposed that he came to the shop and tried to open lock of his shop. Accused Rafique came there and prevented him not to open the shop but he opened the shutter and found the wall intervening the two shops had been broken but in the complaint he has stated that when he entered the shop from the door of accused Rafique he was surprised to find that the wall separating the shop was actually broken and two shops were converted into one. The complainant did not say that locks of his shop were broken. While P.W. Malik Muhammad Khalid deposed that he had seen the complainant applying two locks to his shop and when in the morning he went there he saw that both the locks were broken. He however, stated that in the evening the complainant came to his workshop and informed him that accused Rafique was not allowing him to carry on his business and Rafique had occupied the shop. The conclusion which is drawn from the statement of P.W. Khalid is that the complainant had come to the shop one day prior to the incident which is not stated by the complainant P.W. Lal Muhammad did not know how accused Rafique took possession of the shop in dispute. P.W. Khurshid Ali is resident of Usmania Colony where he had been living for the last 15 months but Khurshid Ali cited as prosecution witness in complaint was stated to be resident of Ghas Mandi, Niran Naka, Chakiwara Road. It shows that this witness was a procured witness and the witness cited by the complainant in his complaint was not produced. P.W.5 Adam did not support the complainant's case. The evidence adduced by the complainant does not prove that there was any trespass. The complainant in para. 6 of the complaint stated that he was not permitted to enter his shop and he went to the police station. He does not say of any quarrel in his complaint but in his deposition stated that quarrel took place and several persons collected. The defence has produced the evidence that the appellant was not in occupation of the shop for the last three years. There is also no evidence worth the name that any goods we: e lying in the shop and they had been taken away by the accused. The incident had occurred on 5‑8‑1979 but the complaint was filed on 16‑8‑1979. No explanation had been given for filing the complaint after such a delay. It is contended by the learned counsel for the appellant that he (complainant) went to the police station but the police refused to lodge the report. He even approached the higher authorities but his grievance was not redressed. No evidence has been adduced to prove that the complainant had gone to the police station and his report was not recorded by the police. Even if his report was not registered by the police it was the duty of the complainant to file a complaint without further delay. The delay of about 11 days has not been explained and, therefore, there are chances that actual facts have not been narrated by the complainant. According to the defence accused Rafique was the tenant of the co‑accused and there was a civil dispute between the parties and the complainant has converted it into a criminal case. In these circumstances there is no force in this appeal. The same is dismissed. The above are the reasons for dismissing the appeal by short order, dated 24‑9‑1985. SA./K‑161/K Acquittal upheld.