P L D 1965 (W (PLP)

(b) Criminal Procedure Code (V of 1898)

Ss. 195 & 476 Magistrate giving complainant seven days' notice to show cause why he should not be prosecuted for forging a document and using same in criminal Court but recording no finding nor making any complaint in writing to a competent Court but demanding immediate security from complainant and on his failure to file security remanding him to custody ‑ Magistrate, held, acted without jurisdiction. Ihsanul Huq and. Faizanul Haq for Appellant. N. K. Jatoi for the State. Dates of hearing: 20th and 21st October 1964. These are two criminal revisions, the first bearing No. 450/63 is upon a petition by the complainant Abdul Latif for setting aside the order passed by the learned A. C. M. Mr. Anwar M. Sheikh dated 20th June 1963, acquitting the accused Mst. Bilquis. The second revision bearing No. 455/63 is again upon a petition by Abdul Latif praying that an order passed on the same day calling upon the complainant to show cause why he should not be prosecuted for forging the document and using the same in a criminal trial and further ordering that he should be released only on furnishing a bail in the sum of Rs. 3,000 be quashed. Both these matters will be disposed of by this judgment.

2. A criminal complaint was filed by Abdul Latif on 25th October 1962 under section 406, P. P. C. in the Court of Mr. Abdul Bari Khan, A. C. M., Kaiachi alleging that the accused Mst. Bilquis had committed breach of trust in respect of a sum of Rs. 618‑12‑

0. This complaint was registered and a warrant was issued against Mst. Bilquis on 1‑11‑62 after some preliminary inquiry. The learned Magistrate then examined five witnesses, namely, the complainant Abdul Latif, P. W. 1, Naseer Ahmad Khan (P. W. 3), Niaz Ahmad (P. W. 5), and Aziz Ahmad (P. W. 4). He then framed a charge against the. accused on 15th April 1963. Mr. Bari was then transferred and the case came before Mr. Anwar Shaikh. A. C. M., Karachi on 11th May 1963. On that day the accused Mst. Bilquis stated that she did not claim a de nova trial. However, when the case was adjourned for 6th June 1963‑ she applied for a de novo trial and the learned Magistrate granted that request and ordered that the witnesses be summoned. The case then came up on 20th June 1963 on which day the learned Magistrate merely upon the examination of the complainant Abdul Latif passed an order of discharge of the accused under section 253, Cr. P. C. which he later on corrected as an order of acquittal under section 258, Cr. P. C. This appears in the order sheet. However, in the judgment itself the learned Magistrate observed that since the charge had been framed by his predecessor he was formerly recording an order of acquittal. Simultaneously he passed an order calling upon the complainant Abdul Latif to show cause as to why he should not be prosecuted for deliberately forging a document and using that in a criminal case. Abdul Latif was then pre‑emptorily taken into custody because evidently he was not able to find a surety in the sum of Rs. 3,000 and was later released on furnishing security. Both these orders have been challenged on behalf of the complainant before me, and I have heard Mr. Faizanul Haq in support of the two petitions and Mr. N. K. Jatoi for the State. Mr. Jafri who had filed a power on behalf of Bilquis in this Court failed to appear.

3. The case set out in the complaint of Abdul Latif was that in May 1962 he was in great financial difficulty and he told the accused Mst. Bilquis that he required Rs. 300 and she advised him to take a loan from her friend Naseer Ahmad Khan, a Pathan moneylender. Naseer Ahmad Khan was then approached and he agreed to advance this loan upon an interest of Rs. 25 per cent. If the money was not returned in' one month the complainant would have to pay Rs.75 per month as interest. Moreover, Naseer Khan made it a condition of this advance of loan that Mst. Bilquis must stand surety for the repayment of the money and interest. She agreed to do so whereupon Rs. 225 was advanced by Naseer Khan to the complainant, after the deduction of Rs. 75 as advance interest. In August 1962 when the complainant was being threat end by Mst. Bilquis with a civil action on account of his non‑payment of interest or the principal, he paid a sum of Rs. 693 to her and for which she executed a receipt. This money was entrusted to her for payment to Naseer Khan. However, it was found that Mst. Bilquis had misappropriated this sum and had not paid it to Naseer Khan as she was entrusted to do.

4. I do not propose to express any opinion upon the merits of this case in view of the order which I am proposing to make in this case. The contention on behalf of the complainant before me was that there has been a grave disregard of procedure by the learned Magistrate and this has resulted in serious miscarriage of justice and, therefore, the order of acquittal should be set aside and a retrial ordered. Now, it is an admitted position that the predecessor of Mr. Anwar Shaikh had examined five prosecution witnesses and it was then that a charge had been framed. The case then having been transferred to the Court of Mr. Anwar Shaikh and he having passed an order on 6th June 1963 at the request of the accused for the rehearing of the prosecution witnesses under the proviso to section 350 (1), Cr. P. C., it appears to me to be plain that he could not on the next date pass an order of acquittal merely upon the examination of the complainant. In fact from the body of the judgment passed by the learned Magistrate it is clear that he has not taken into consideration at all the other evidence which had been previously led on behalf of the complainant. It also appears that after hearing the complainant and seeing the receipt, Exh. 1‑A, the learned Magistrate was satisfied that this‑was a false case and though the order which he was going to pass would be in the nature of an order of discharge he had to record an order of acquittal because the charge had been framed by his predecessor. Now, this could not have been done. The complainant was entitled that the remaining witnesses be examined under the latter part of section 256, Cr. P. C. In fact, an application was made to the learned Magistrate on 20th June 1963 for examining those witnesses who were actually present in Court. The learned Magistrate rejected this application. The result was that though there was evidence of other witnesses which had been recorded by the predecessor of the learned Magistrate the same was ignored and a request for the examination of the other witnesses was rejected. It is conceded by Mr. Jatoi, the learned Advocate appearing for the State, that this was a serious irregu larity and it cannot be cured under section 537, Cr. P. C. Therefore, though it is not difficult to understand the feeling of the learned Magistrate after he had heard the complainant yet the manner in which he disposed of the case is in disregard of procedure and vitiates the trial. The law on the point was discussed at some length in a somewhat similar situation by a Division Bench of this Court in the case of State v. Bashir Ahmad (P L D 1960 Kar. 64). I am in respectful agreement with it. In view of my conclusion as regards the validity of the trial I set aside the order of acquittal passed by the learned Magistrate and order retrial of the case. The retrial shall be by a Magistrate other than the learned A. C. M. who passed the order of acquittal. In view of my order setting aside the acquittal the other order whereby the complainant was called upon to show cause why he should not be prosecuted for using a forged docu ment must also be set aside. I order accordingly. Such an order can again be made after the retrial if the learned Magistrate comes to the conclusion that this is expedient in the interest of justice. I would also like to observe that the learned Magistrate acted without jurisdiction in demanding security from the compliment Abdul Latif when he had given him 7 days time to show cause why he should not be prosecuted. He had to record a finding as required by section 476, Cr. P. C. and make a complaint in B writing to a Court of competent jurisdiction and it was only then that he could call upon Abdul Latif to furnish security for his appearance before the Magistrate in whose Court the complaint was filed. S.A.H. Petition allowed.