1968 P Cr (PLP)

Ghazi Abdur Rehman for Respondent. SHAUKAT ALI, J. -This is an appeal under section 417, Cr. P. Code, by the Public Prosecutor, West Pakistan, praying that the orders of Mr. (now Mr. Justice) M. Jamil Asghar, Special Judge Anti-Corruption, West Pakistan, dated the 24th January 1962, and of Mr. Salah-ud-Din Hanif, Special Judge, Anti-Corrup tion Establishment, Lahore, dated the 21st March 1963, acquitting Bashir Ahmad, Revenue Patwari of Halqa Alipur Tibba Tehsil Shahdara, District Sheikhupura, of offences under section 161, P. P. C., read with section 5 P L D 1965 S G 102 of the Prevention of Corruption Act (II of 1947), be set aside.

2. On 17th June 1961, a case was registered against Bashir Ahmad, on the allegation that while posted as Revenue Patwari of Halqa Alipur Tibba, Tehsil Shahdara, District Sheikhupura, he had demanded and obtained a sum of Rs. 100.00, as gratifica tion other than legal remuneration from Shaukat Ali P. W. as a motive or reward for mutation of land in his name. A challan was subsequently put in the Court of Special Judge, Anti-Corrup tion with Headquarters at Lahore, under section 161, P. P. C. read with section 5 P L D 1965 S G 102 of the Prevention of Corruption Act (11 of 1947).

3. The learned Special Judge examined Muhammad Rafi, Revenue Patwari (P. W. 1), and found that the order dated 31st of July 1961, sanctioning the prosecution of the respondent was passed after his services had been dispensed with. Following the dictum of the Supreme Court in case Hamid Ghulam Sadiq v, Pakistan and others P L D 1960 S C 351 he held that .he had no jurisdiction to try the respondent and proceeded to acquit him. No appeal was filed by the Provincial Government at that stage against this order.

4. After the pronouncement of the judgment in case Ali Ahmad v. The State P L D 1965 S G 102 the State put an application before the Special Judge for the prosecution of the respondent, who issued notice to him to stand the trial for the said offences. The Special Judge received a copy of judgment of this Court in case State Muhammad Bakhsh involving identical question, wherein it was held that the accused could not be tried again unless the order of acquittal was set-aside in appeal by the High Court. Following this decision the learned Special Judge took the view that the re-trial was not warranted and acquitted the respondent. The present appeal was filed on the 20th of September 1963. A Bench of this Court admitted this appeal.

5. The first question that falls for decision is whether the order of the Special Judge dated the 24th of January 1962, is an order of acquittal within the meaning of subsection (1) of section 403, Criminal Procedure Code? In the instant case, accusation was put to the respondent and one of the prosecution witnesses, namely, Muhammad Raft, Revenue Patwari, was examined. It follows that the trial had begun and the respondent can be said to have been tried for offences under section 161, P. P. C. read with section 5 PLD 1965 SC 102 of the Prevention of Corruption Act (11 of 1947), and it was after examining Muhammad Rafi, Revenue Patwari that the learned Special Judge held that he had no jurisdiction to try the case in view of the dictum of their Lordships of the Supreme Court in Hamid Ghulam Sadiq's case. In. Yusof ali Mulla Noorbhoy v. The King PLD 1949 PC 108 it is laid down that the whole basis of section 403 PLD 1949 PC 108 is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. It was further observed that a Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law as for instance where law prohibits the institution of a prosecution in the absence of a proper sanction. Their Lordships of the Privy Council also observed that if the orders of acquittal were passed by a Court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal, but if the orders were a nullity, there was nothing to appeal against.

6. In the light of this decision it can be said that the order dated the 24th of January 1962, was an. order of acquittal and was passed by a Court of competent jurisdiction. As such, it was obligatory for the Provincial Government to impugne this order in appeal within the prescribed period to this Court.

7. The order of acquittal was passed on the 24th of January 1962, while this appeal was lodged on 20th of September 1963. The period of limitation provided under Article 157 of the Limitation Act is six months from the date of order of acquittal Therefore, this appeal is hopelessly barred by time.

8. In the result we would dismiss the State appeal and the notice issued to the respondent is hereby recalled. Appeal dismissed.