P (PLP)

SHABIR AHMAD, J.‑Muhammad Khan, Muhammad S'arwar, Lal Khan alias Laloo, Karam Elahi, Sher Shah alias Mange Shah alias Sardar Shah and Ghulam Hussain were sentenced under section 420 Pakistan Penal Code, by Mr. M. Zakir, Special Magistrate, West Punjab, Head‑quarters at Lahore, by his order dated the 22nd December1949 to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs. 1000 in default of payment of which each was to, undergo further rigorous imprisonment for nine months. They appealed to the Sessions Judge, Jhelum, who by his order dated the 23rd January, 1950, accepted the appeal and acquitted all of them. Against the order of acquittal passed by the Sessions Judge, Jhelum, the Provincial Government has presented an appeal with a view to having the order of acquittal set aside. Fateh Muhammad who was alleged to have been cheated by the six persons acquitted by the Sessions Judge, Jhelum, has put in a revision petition (Cr. R. No. 393 of 1950) paying that the order be, quashed the acquittal of Muhammad Khan and others set aside and the appeal against the order of Mr. M. Zakir directed to be heard by the Sessions Judge, Lahore. This order will dispose of the appeal by the Provincial Government and the criminal revision put in by Fateh Muhammad. The allegations of the prosecution relevant for the decision of the criminal appeal and the criminal revision may be briefly stated. Fateh Muhammad the person who is alleged to have been cheated by the respondents is the proprietor of Sind Punjab Hosiery Factory and has a shop in Kashmiri Bazar, Lahore. On the 23rd October, 1948 Sardar Shah and Ghulam Hussain respon dents went to his shop and asked him if he wanted to buy any yarn and also to quote the price of the yarn lying in his shop. At the time when the two respondents visited his shop Fateh Muhammad had bales of yarn No. 20 (China make) and told them that the price was Rs. 40 per bundle. Sardar Shah and Ghulam Hussain respondents offered to sell bundles of yarn like that to Fateh Muhammad at the rate of Rs. 35 per bundle provided be was prepared to pay two price per rupee as commission. Fateh Muhammad agreed to buy at this price and was asked by Sardar Shah and Ghulam Hussain to accompany them to Jhelum. At Jhelum Sardar Shah and Ghulam Hussain and some others practised deception on Fateh Muhammad with the result that three or four days later he parted with Rs. 12,

200. No goods were supplied to Fateh Muhammad and discovering that he had been cheated he tried to have his money refunded but as in spite of his best efforts and the intervention of some respectable persons only Rs. 6,000 were returned to him, he sent an applica tion to the Criminal Investigation Department, Punjab, which resulted in the respondents being challaned. Mr. S. A. Mahmud, Assistant Advocate‑General who appeared in support of the Government appeal and Khawaja Feroz‑ud‑Din who appeared for Fateh Muhammad in the revision petition contended that as Mr. M. Zakir who tried and convicted the respondents had his headquarters at Lahore, only the Court of Session at Lahore could hear an appeal against his order and the order of the Sessions Judge, Jhelum, was ultra vires and without any binding force. The learned counsel for the respon dents on the other hand urged that the Sessions, Judge, Jhelum, was competent to hear the appeal and his order was not ultra vires. It was further urged for the respondents that even if the Sessions judge, Jhelum, be held not to have had territorial jurisdiction to hear the appeal, that defect by itself .was not sufficient for holding that the order was without jurisdiction and f or setting it aside. The first question which requires decision is whether or not the Sessions Judge, Jhelum, was competent to hear an appeal against the order of Mr. M. Zakir, Magistrate. By Notification No. 3006‑G‑49/31999 dated the 12th April 1949 which was pub lished in Part I of the West Punjab Gazette dated 20th May 1949 at page 210 Mr. Zakir was appointed to be a Magistrate of) the First Class throughout the Province under section 12 of the) Code of Criminal Procedure. Two other notifications were issued on the 12th April 1949 with respect to Mr. M. Zakir, one of which conferred powers under section 30 of the Code of Criminal Procedure on him and the other authorised him to try cases summarily under section 260 of the Code of Criminal Procedure. The learned counsel for the respondents urged that the notification appointing Mr. M. Zakir a Magistrate of the First Class for the whole of the Province amounted to empowering him to try offences committed anywhere in the Province and though he may have tried a case at Lahore it was to be assumed for the purposes of an appeal to have been tried in the district in which the offence had been committed and where it should ordinarily have been tried under section 177 of the Code of Criminal Procedure. The learned Assistant Advocate‑General urged that the notifications issued on the 12th April 1949 did not fix the place where Mr. M. Zakir was' to hold his Court but by notification No. 28913 issued on the 19th April 1949 and published in Part I of the West Punjab Gazette dated 22nd April 1949 at pages 159 and 160.. Mr. M. Zakir was appointed Special Railway Magistrate Lahore and was posted to Lahore. The learned counsel for the Crown added that as the place of posting of Mr. M. Zakir was at Lahore, he could only hear cases at Lahore and orders passed by him, if 'appealable to a Sessions judge, were appealable only to the Sessions Judge, Lahore, and not to a Sessions judge of any other place. I do not think that the notifications issued on the 12th and 19th April 1949 authorised Mr. M. Zakir to try at Lahore offences committed anywhere in the Province. In my opinion tl‑e notification issued on the 19th April 1949 was distinct from that issued on the 12th April 1949 and by that notification Mr. M. Zakir was ,appointed a Special Magistrate under section 14 of the Code of Criminal Procedure 1898 with respect to offences committed on the North Western Railway. With regard to the notifications issued on the 12th April 1949 I have arrived at the conclusion that they did not and could not authorise Mr. M. Zakir to try an offence anywhere he liked in the Province and the forum of the trial was to be governed by the relevant provisions of the Code of Criminal Procedure. The learned Assistant Advocate‑General explained that the trial of the respondents took place at Lahore because Sarwar Shah and Ghulam Hussain respondents had done something at Lahore consequences of which ensued at Jhelum and section 179 of the Code of Criminal Procedure came into play. The learned counsel for the respondents contended that section 179 of the Code of Criminal Procedure had no application and the trial could not have been held at Lahore. Even if the trial took place in a wrong district, the proceedings of the trial Court will be governed by section 531 of the Code of Criminal Procedure and as it was not alleged in the Court of Session or in this Court that any failure of justice had resulted from the trial being held at Lahore, I do not consider it necessary to decide whether or not section 179 of the Code of Criminal Procedure 1898, has application to the facts of the case. It was, however, urged by the learned counsel for the respondents that even if section 179 of the Code of Criminal Procedure applied and the trial could be held at Lahore but, because under the provisions of 177 of that Code the trial should ordinarily have been held at Jhelum, where Fateh Muhammad parted with money, the Sessions Judge of Jhelum alone was competent to hear the appeals. Appeals against orders passed by Magistrates of the First Class are governed by section 408 of the Code of Criminal Procedure which provides inter alia that if a person has been convicted on a trial held by a District Magistra'e or other magistrate of the First Class he may appeal to the Court of Session but if the sentence is one of imprison ment for a term exceeding four years or is a sentence of transportation for any term or is a sentence for an offence under section 124‑A of the Pakistan Penal Code the appeal shall lie to the High Court. It is noticeable that all that section 408 of the Code of Criminal Procedure says is that an appeal shall lie to the Court of Session and it is nowhere mentioned in that section or in any other section of Chapter 31 of the Code of Criminal Procedure, in which chapter the subject of appeals is dealt with, that appeal is to lie to the Sessions judge within the local limits of whose jurisdiction the Court of the Magistrate who held the trial is situate. The question arises whether the omission to, specify in section 408 of the Code of Criminal Procedure the Sessions Judge to whom appeals lie from the orders of the Magistrate, mentioned in that section was intended to make the orders appealable to a Sessions judge other than the one within the local limits of whose jurisdiction the Court of the Magistrate who held the trial was situate. One object of not specifying the Sessions Judge competent to hear appeal under section 408 of the Code of Criminal Procedure could have been that the appeal may lie to any Sessions Judge, but that construction would lead to such anomalous results that the Legislature could not have intended such a thing. For example a person convicted at a trial held by a Magistrate at Lahore and sentenced to imprisonment for four years or less may present an appeal to the' Court of Session any where in Pakistan say at Dacca. Moreover if at one trial two or more persons were convicted it would be open to each of them to choose his own Court of appeal with the result that the same order would be open to scrutiny by different appellate Courts. The anamolies mentioned above would result even if the appeal lies to the High Court because neither section 408 nor section 410 of the Code of Criminal Procedure, the latter of which enacts that a person convicted on a trial held by a Sessions judge or an Additional Sessions judge may appeal to the. High Court, states that the High Court contemplated was the .one within the local limits of whose Jurisdiction the trial had been held. Realising the weakness of that position the learned counsel for the respondents did not seriously contend that an appeal against the order of Mr. M. Zakir in the present case could be presented to the Court of any Sessions judge at the pleasure of the convicted persons but he did, as mentioned already, contend, that the Sessions Judge Jhelum could hear the appeal. In support of his contention that under section 408 of the Code of Criminal Procedure appeals lie to the Court of the Sessions judge within the local limits of whose jurisdiction the offence was committed the learned counsel cited a decision of the Madras High Court reported in 17 I. C.

786. In the case cited one Sadananda Patnaik was convicted of an offence by a First Class Magistrate of Gumsoor Sub Division, Ganjam. He appealed to the Sessions Judge Ganjarn Session Division who acquitted him and against the order of acquittal the Madras Government presented an appeal through the Public Prosecutor to the Madras High Court, on the ground that the Sessions Judge Ganjam had no jurisdiction to hear the appeal. It is clear from the judgment of the High Court that for Magisterial as well as for judicial and Revenue Administration, the old Ganjam Collectorate had been divided into two districts one being the Agency District and the other the non‑Agency District and there was a Sessions Judge of the Agency Session Division and one for the non‑Agency Sessions Division. The offence of which Sadananda Patnaik had been convicted was alleged to have been committed at Baliguda which was in the Agency tract and the case had been transferred by the Agent to the Court of the first class Magistrate at Gumsoor who had local Criminal jurisdiction over certain Agency tracts as well as over certain non‑Agency tracts, but, because of the order of the Agent transferring the case to him, the Magistrate had tried the case in his capacity of a Magistrate of the Agency tract. It had been contended for the appellant that as the Magistrate had tried the case as a Magistrate of the Agency tract the appeal could have been heard only by the Agent who was the Sessions Judge of the Agency Session Division and the fact that the Magistrate who had tried the case had jurisdiction both in the Agency and non‑Agency tracts could not give jurisdiction to the Sessions Judge of Ganjam to hear the appeal, and that contention was accepted. The decision does not support the contention of the learned council for the respondents and in fact goes against his contention, because it lays down that the Sessions judge to whom the Magistrate was subordinate was alone competent to hear an appeal against his order. According to section 17 of the Code of Criminal Procedure the Magistrates appointed under sections 12 to 14 and Benches of Magistrates constituted under section 15 of the Code of Criminal Procedure are subordinate to the District Magistrate and all other Magistrates in a Sub‑Division are subordinate to the Sub‑Divi sional Magistrate, but subsection (5) of that section says that neither the District Magistrate nor the Magistrates or Benches appointed or constituted under sections 12 to 15 shall be subordinate to the Sessions judge except to the extent and in the manner expressly provided in sections of the Code following section

17. Going through the Code I find that the provisions of the Code of Criminal Procedure pointing to the subordination of the Magistrates to the Sessions Judge are sections 123, 408, 435, 436, 437 and

438. Section 123 provides that when a person has been ordered by a Magistrate to give security under Chapter 8 for a period exceeding one year, the Magistrate shall, if such person does not give such security, issue a warrant directing him to be detained in prison pending the orders of the Sessions judge before whom the proceedings are to be laid as soon as it can conveniently be done. The section does not mention that the case is to be laid before the Sessions judge within the local limits of whose jurisdiction the Court of the Magistrate who passed the order is situate and in that respect sections 123 and 408 of the Code of Criminal Procedure are alike. Sections 435 and 438 of the Code of Criminal Procedure deal with powers in revision. The relevant part of section 435 is as follows :‑

"(1) The High Court or any Sessions judge or District Magistrate, or any Sub‑Divisional Magistrate empowered by the Provincial Government in this behalf, may call for and examine the record of any proceeding, before any inferior Criminal Court situate within the local limits of its or his jurisdiction for 'the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any pro ceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.‑All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions judge for the purposes of this sub‑section and of section 437.)" (2)

(3)

(4)

This section makes it clear that the Sessions judge having power to call for the records is the one within the local limits of whose jurisdiction is situate the Court of the Magistrate whose records are sought to be sent for and no other. If an offence committed within the local limits of the jurisdiction of one Magistrate is being tried by a Magistrate not having jurisdiction in those limits the only Sessions judge who can call for the records is the one within the local limits of whose jurisdiction the case is being heard or was decided and the Sessions Judge of no other Session Division has jurisdiction. Sections 436 to 438 deal with stages subsequent to the one contemplated by sec tion 435 as each of them mentions that when the records have been examined, under section 435 the. Sessions judge, or the other Courts empowered to pass orders, may pass orders mentioned in those sections and it is, therefore, clear that the Sessions Judge competent to act under sections 436, 437 and 438 is the one within the local limits of whose jurisdiction the Court whose proceedings are to be revised is situate. I consider it very unlikely that while the legislature enacted that powers of revision be exercised by the Sessions judge within the local limits of whose jurisdiction the inferior Court is situate, it intended that the powers to hear appeals be possessed by the Sessions Judge within the local limits of whose jurisdiction the offence was committed and not by the one within the local limits of whose jurisdiction the trial was held. The view I take of section 408 of the Code of Criminal Procedure is not unsupported by authority. In I. L. R. 30 Mad. 136.a Division Bench of the Madras High Court held that the Sessions Judge contemplated by section 408 of the Code of Criminal Procedure was the Sessions Judge within the local limits of whose jurisdiction the Court of the Magistrate passing the order appealed against is situate irrespective of the place where the offence was committed. A Division Bench of the Punjab Chief the Court in a case reported as 7 P R 1918 (Criminal) considered the decision of the Madras High‑‑'Court in I. L. R. 30 Madras 136 and expressed agreements with it. In 'the case before the Chief Court, no doubt, the interpretation of section 408 .of the Code of Criminal Procedure did not directly arise as it did before the Madras High Court, but the learned judges did carefully consider the Madras decision and expressed complete agreement with it. Both on principle and authority, therefore, the Sessions Judge competent to hear an appeal under section 408 of the Code of Criminal Procedure is the one within the local limits of whose jurisdiction the. Court of the Magistrate who held the trial is situate. In the present case not only did Mr. M. Zakir pronounce the judgment against the respondents, at Lahore but it is clear from the record that he had conducted all the proceedings in connection with the case at Lahore and, therefore, the appeal by the respondents did not lie to any Sessions Judge‑ other than the Sessions judge at Lahore. I hold, therefore, that the. Sessions Judge Jhelum had no territorial jurisdiction to hear the appeal. The question that now arises is whether or not the order of the, Sessions Judge, Jhelum,. was ultra. vires and should be set aside, for the reason that it is an order of a Court which had no territorial jurisdiction to pass it. In this respect a provision of law which has to be considered is section 531 of the Code of Criminal Procedure which reads as‑follows :‑ " No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub‑division, or other local area, unless it appears that such error has in fact occasioned a failure of justice. The learned Assistant Advocate General contended that this section had no application to appeals and referring to sections 533, 535 and 537 of the Code of Criminal Procedure, he added that where the Legislature intended that a provision of law was to apply to appellate Courts, they had mentioned those Courts. A reading of sections 533, 535 and 537 of the Code of Criminal Procedure, however, makes it clear that the mention of Courts of appeal in those sections was for a purpose entirely different from the one contended for by the learned Assistant Advocate General, and I need not say any more about this part of his contention. He contended further that the expression " other proceedings," in section 531 of the Code of Criminal Procedure did not include the proceedings of an appellate Court and argued that as enquiries and trials, if restarted, would result in waste ‑of time which had been spent in holding them in Courts not having territorial jurisdiction, the Legislature wanted to make a provision that those proceedings could be allowed, to stand, but, he added, that as the rehearing of an appeal cannot result in the loss of very much time the Legislature did not intend that section 531 of the Code of Criminal Procedure should apply to appeals heard by Courts not having territorial jurisdiction. According to the learned Assistant Advocate General the expression " other proceedings " in section 531 and other parts of the Code referred only to original proceedings of Courts such as proceedings under Chapter 8 or 36 of the Code of Criminal Procedure. In my opinion, there is no force in this contention. Section 6 of the Code of Criminal Procedure enacts that besides the High Court and the Courts constituted under any law, other than the Code of Criminal Procedure,, for the time being in force there are four classes of Criminal Courts, namely,

1. Courts of Session, '

2. Magistrates of the First Class,

3. Magistrates of the Second Class, and

4. Magistrates of the Third Class. It is obvious that when the Court of Session is hearing appeals it does not cease to be a Court of Session and therefore if the words "any Criminal Court" in section 531 of the Code of Criminal Procedure are replaced by the Court of Session it becomes clear that the order of a Court of Session in an appeal is as much covered by that section as the proceedings of a Court of Session in an original trial. Moreover, if the contention of the learned A. A. G. that the acts of a Court of appeal could not be considered proceedings of the Court of appeal were accepted, the powers given to the High Court by section 435, which section empowers the High Court to call for the proceedings of any inferior Criminal Court, would not empower the High Court to interfere with orders passed by an Appellate Court. It is obvious that section 531 of the Code of Criminal Procedure was intended to apply to all cases in which proceedings whether original, appellate or revisional had been' taken in a Court not having territorial jurisdiction and I would, therefore, hold that if the other conditions of section 531 are satisfied' the judgment of the Sessions Judge, Jhelum, in the present the case could be left undisturbed. Section 531 of the Code of Criminal Procedure provides that the decision of a Court not having territorial jurisdiction is to be set aside only if it appears that the holding of proceedings in wrong Court had in fact occasioned a failure of justice. In the grounds of appeal put in on behalf of the Provincial Government it was not mentioned that the order passed by the Sessions judge was wrong on merits nor did the criminal revision put in by Fateh Muhammad raise any such point. Learned counsel for the respondents urged that as it had not been alleged by the Provincial Government or by Fateh Muhammad that the decision of Sessions Judge, Jhelum. was wrong on merits, it should be presumed that the hearing of the appeal by the Sessions Judge, Jhelum, had occasioned no failure of justice and, therefore, the appeal and the revision, petition should be dismissed. In spite of the fact that the grounds of appeal did not challenge the decision of the Sessions fudge, Jhelum, on merits the Assistant Advocate General was given an‑opportunity to show that the decision under appeal was open to arty objection other than the technical objection with regard to territorial jurisdiction and he urged that the evidence oh the record established that Fateh Muhammad had actually been cheated and the decision of the appellate Court to the contrary was entirely wrong. The learned Sessions Judge, Jhelum, considered the entire evidence on the record and finding that the only evidence produced to prove the payment of Rs. 12,200 by Fateh Muhammad to the respondents was the deposition of Fateh Muhammad himself, held that as the deposition of Fateh Muhammad was not sufficient to justify, the conviction of the respondents they were entitled to acquittal. The learned Assistant Advocate General had to admit that the only evidence About the payment of Rs. 12,200 to the respondents was the statement of Fateh Muhammad but he urged that the circumstances showed that the man had actually been cheated. It is, however, significant that, though it could have been done, no evidence was led to corroborate the oral evidence given by Fateh Muhammad which is by no means of such a character as to justify a conviction in spite of the defects of the prosecution case. I would, therefore, hold, that the acceptance of the appeal by the Sessions Judge, Jhelum, has not led to a failure of justice and would dismiss Criminal Appeal No. 411 of 1950 as well as Criminal Revision No. 393 of 1950. A. MUHAMMAD JAN, J.‑I agree. K. M. A./A. H. Appeal dismissed.