P L D 1961 (W (PLP)

S.A. MAHMOOD, J.‑Ata‑ur‑Raman respondent, while employed as Almoner in the Nishtar Hospital, Multan, is alleged to have committed offences under sections 477‑A and 420, Pakistan Penal Code. He was tried by Sardar Taimoor Shah, Special Judge, Multan, and was acquitted by his order dated the 26th of January 1959. The State has filed an appeal against his acquittal. It is unnecessary to go into the facts of the case, because it is contended on behalf of the State that he was incompetent to act under the law as a Special Judge, and this is conceded by the learned counsel for the respondents. 2. Sardar Taimoor Shah was for the first time appointed as Additional District Magistrate, Multan, on the 17th of October 1958. The case was placed before him for trial in the belief that he was competent as Additional District Magistrate to act as Special Judge under the Pakistan Criminal Law (Amendment) Act (XL of 1958) (hereinafter called the Act), which came into force on the 23rd of September 1958. Section 3 of the Act provided as follows : ‑ "3. Appointment of Special Judges.‑(1) The appropriate Government shall, by. notification in the Official Gazette, appoint as many Special Judges as may be necessary to try and punish offences specified in the Schedule. (2) No person shall be appointed a Special Judge unless he‑ (a) is qualified under Article 167 of the Constitution for appointment as Judge of a High Court ; or (b) has for a period of not less than three years, exercised, whether continuously or not, the powers under the, Code of Criminal Procedure, 1898, of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, or of a District Magistrate or an Additional District Magistrate." Subsection (1) of section 3 empowers the appropriate Government to appoint by notification in the Official Gazette as many Special Judges as may be necessary to try and punish offences specified in the Schedule,, and subsection (2) directs that no person shall be so appointed unless he has the qualification specified in its clauses (a) or (6). The section does not itself appoint anyone as a Special Judge. Subsection (1) thereof confers a power on the appropriate Government to appoint by notification (and appointment without a notification is not valid) as many Special Judges as may be necessary and subsection (2), which is negatively expressed, lays down the qualification for appointment. It depends upon the terms of the notification made by the appropriate Government under subsection (1) whether a person is appointed as a Special Judge or not and upon subsection (2) whether he has been validly appointed in respect of his qualifications. If he does not posses one of the qualifications stated in clause (a) or clause (b) of sub section (2), he is incompetent to act as a Special Judge, though appointed under subsection (1). 3. In exercise of the powers conferred by subsection (1) of section 3 and subsection (1) of section 4 of the Act, the Provincial Government issued Notification No. 13/73‑H‑Judl/58, dated the 18th of December 1958 respecting appointment of Special Judges. It is in general terms and is as follows :‑ "In exercise of the powers conferred by subsection (1) of section 3 and subsection (1) of section 4 of the Pakistan Crimi nal Law Amendment Act, 1958 (XL of 1958) and in super session of all the notifications issued by the integrating Units of the Province of West Pakistan under subsection (2) of section 3 and subsection (I) of section 4 of the Pakistan Criminal Law Amendment Act, 1948, the Governor of West Pakistan is pleased to appoint all Sessions Judges, Additional Sessions Judges, District Magistrates and Additional District Magistrates in the Province of West Pakistan, who have, for a period of not les; than three years, exercised, whether continuously or not the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge or an Additional Sessions Judge, District Magis trate or an Additional District Magistrate, to be ex‑officio Special Judges within their respective Sessions Divisions/Districts, for the trial of offences under the said Act." This notification appointed those of the Additional District Magis trates as Special Judges, who had exercised powers of Additional District Magistrates under the Code of Criminal Procedure for a period of not less than three years, whether continuously or not. It ignores the qualifications in clause (a) of subsection {2) of section 3 of the Act. It did not have the effect of appointing Sardar Taimoor Shah to act as Special Judge as he had not exercis ed powers under the Code of Criminal Procedure of Additional District Magistrate for three years. He was not appointed as a Special Judge by any other notification. At least no such noti fication has been brought to our notice. As section 3 (l) of the Act empowered the Provincial Government to appoint Special Judges by notification in the Official Gazette, and as the notifica tion issued by the Provincial Government under it, authorised only those of the Additional District Magistrates, who had exercised powers of Additional District Magistrates for not less than three years, and as Sardar Taimoor Shah had not exercised these powers for the requisite period, he was incompetent to act as a Special Judge. A similar question arose before one of us in Alam Khan v. State (P L D 1959 Lah. 331). 4. We hold that Sardar Taimoor Shah was incompetent to act as a Special Judge and the trial of the case by him was without jurisdiction. The order of acquittal recorded by him is also with out jurisdiction and is set aside. The order of the respondent's acquittal having been set aside, he can be re‑tried by a competent Special Judge in accordance with the law, and we direct that pend ing re‑trial he shall remain on bail on furnishing a personal bond to the sum of Rs. 3,000 with one surety in the like amount to the satisfaction of the Special Judge, Multan. K. M. A. Retrial ordered.