1969 P Cr (PLP)

This is a petition under section 561‑A, Cr. P. C. in which the petitioner challenges an oral order purported to have been made on the 30th June 1967 by late Mr. Jamaluddin Jumani S. D. M., Old Town, Karachi.

2. According to the petitioner the material facts out of which this petition arises are as follows :‑ The petitioner and the first respondent were both employed at the relevant time which Messrs Habib General Limited at their office in Luxmi Building, Bunder Road, Karachi. On 11‑1‑1967 the first respondent, who was on leave on that day, came to see Mr. Noor Mohammad Bhojani, the Chief Accountant of Habib General Limited, in connection with a loan against the provident fund. The said Mr. Bhojani refused the request of the first respondent, therefore the first respondent abused him and went away. After sometime the first respondent returned to the office of Mr. Bhojani, took out a knife from his pocket and attacked him. The petitioner, who was intervened there intervened and saved Mr. Bhojani, but in the meantime the first respondent inflicted three knife injuries on him, two being on his head and one on his chest. The first respondent received au injury from the knife on his owl' hand in the scuffle that took place. Eventually the first respondent was over‑powered and the incident was reported to the Mithadar Police Station Karachi. After the usual investigations, the first respondent was challaned in the Court of Mr. Azizuddin Ahmed S. D. M. Old Town, Karachi. The said Magistrate examined several witnesses who supported the prosecution case. But before he could pass any order, he died. He was succeeded by Mr. Jamaluddin Jumano who recorded further evidence. Thereafter he adjourned the case for the evidence of the first respondent to 20th June 1967. As the first respondent did not produce evidence, Mr. Jamaluddin Jumani, the learned Sub Divisional Magistrate, adjourned the case to 28th June 1968 for arguments. Arguments were heard on 28th June 1967 and the case was fixed for judgment on 30th June 1967. On 30th June 1967 Mr. Jumani announced in Court that he had acquitted the first respondent. However Mr. Jumani did not write any judgment or order. After a couple of days, the applicant went to the Court to obtain a copy of the order pronounced on 30th June 1967 and learnt that Mr. Jumani had died without writing any judgment at all. In these circumstances, the applicant has filed this petition in which he contends that the order of acquittal pronounced on 30th June 1967 is a nullity in law and that the said order should be quashed and the case should be remanded for a fresh trial. Mr. S. M. Noorul Hassan, learned counsel for the first respondent, has contested this petition and argued that as the first respondent had been acquitted by the late Mr. Jumani S. D. M. before his death, that order had become final and this Court could not remand the case for a fresh trial. On the other hand Mr. Ale Raza, learned counsel for the State, supported the plea of the petitioner that the oral order announced on 30th June 1968 by late Mr. Jumani was a nullity. But he argued that the petitioner had other remedies under the Criminal Procedure Code, therefore the extra ordinary jurisdiction of this Court under section 561‑A, Cr. P. C. could not be invoked for the purpose of obtaining an order for a fresh trial or a remand.

4. Learned counsel have produced a certified copy of a judg ment of a Division Bench of this Court in Muhammad Iqbal v. State Criminal Appeal No. J‑426 of 1966. The facts of that case were that an Additional Sessions Judge of Karachi had convicted the appellant before this Court under section 302, P. P. C. and sen tenced him to transportation for life on 21st August 1961. This conviction was reported in the newspapers, therefore the learned Senior Judge of this Court had sent for the papers from the Court of the learned Additional Sessions Judge. It was then discovered that the learned Additional Sessions Judge had not written any judgment when he pronounced the said order of conviction. Apparently the judgment was written later and signed on 2 3rd September 1961. It was contended that the order convicting the appellant was a nullity because it was not supported by any judgment. This contention was accepted by this Court. After stating that there was no judgment in existence on 21st August 1961 when it was pronounced, a Division Bench of this Court observed :‑ "We find that on 21st August 1961 when the judgment in this case was announced, there was in fact no judgment in existence at all. It is in our opinion a glaring illegality which has entirely vitiated these proceedings and rendered them illegal. We therefore set aside this judgment and conviction and the sentence imposed . . . . . . . and direct that there should be a retrial in this case." I am in respectful agreement with these observations which are binding on mc. Accordingly I hold that the order of acquittal purported to have been announced by the late Mr. Jumani on 30th June 1967 was not a valid order in law. I cannot therefore accept the argument of learned counsel for the first respondent A that a retrial or a remand of the case cannot be ordered, because the first respondent has obtained in his favour an order of acquittal which has become final. There is no order in existence, therefore the provisions of section 403, Cr. P. C. are not attracted. But as the order announced by the learned Sub‑Divisional Magistrate on 30th June 1967 is null and void, the question that falls for determination is whether the petitioner is entitled to move this Court under section 561‑A, Cr. P. C. for a remand of the case.

5. Mr. Ale Raza has pointed out that just as Mr. Jumani was appointed as Sub‑Divisional Magistrate on the death of Mr. Azizuddin Ahmed, another Sub‑Divisional Magistrate had been appointed to replace Mr. Jumani; therefore according to learned counsel, as the oral order of 30th June 1967 is not an order under law, the first respondent should have applied in the Court of the Sub‑Divisional Magistrate under section 350 of the Cr. P. C for the continuation of the case against the first respondent from the stage it had reached before the 30th June 1967. Section 350, Cr. P. C. in so far as it is relevant states as follows :‑ "Whether any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may resummon the witnesses and recommence the inquiry or trial. (a) In any trial the accused may, when the second Magistrate commences his proceedings demand that the witnesses or any of them be re‑summoned and reheard; (b) The High Court, or in cases tried by Magistrate subordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, arid may order as a pew inquiry ox trial.". It will thus be seen that as a Magistrate had been appointed in the Court of the Sub‑Divisional Magistrate, Old Town, to succeed the late Mr. Jumani the first respondent could have applied to that Magistrate for appropriate relief instead of moving this Court under section 561‑A, Cr. P. C., As he failed so to do, is he entitled to relief under section 561‑A, Cr. P. C. In Ghulam Mohammad v. Muzammal Khan and others (PLD 1967 S C 317), the Supreme Court has observed at page 325 in reference to this Court's power under section 561‑A, Cr. P. C. as follows :‑ "The inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or ha, been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." I am in respectful agreement with these observations, by which I ant bound. Ay the petitioner could have moved the successor of late Mr. Jumani under section 350, Cr. P.C. for the relief which he seeks from this Court, I hold that this is not a fit case ill R which this Court should exercise its extra ordinary jurisdiction under section 561‑A, Cr. P. C. by ordering remand of the case to the trial Court. However, it will be open to the petitioner to make an application in the Court of the Sub‑divisional Magistrate for further proceeding in the case, and I am sure that the application will be heard and decided according to law by the Magistrate who has succeeded late Mr. Jumani as the S. D. M., Old Town, Karachi. The petition is allowed only to the extent specified herein. Petition partly accepted.