1984 P Cr (PLP)

Bashir Hussain Khalid for Respondent No.

1. Respondents Nos. 2 and 3 in person. Dates of hearing: 7th and 16th May, 1984. This is a petition under section 561-A, Cr. P. C. by Mst. Khurshid Begum, petitioner, for the setting aside of the judgment of the learned Sessions Judge, Toba Tek Singh, dated 14th December, 1983, whereby which the said learned Judge dismissed her revision petition in limine.

2. Respondents Nos. 2 and 3 are present. Respondent No. 1 is represented. Salamat Ali' respondent No. 4, and Abdul Hamid, respon dent No. 5, were previously declared proclaimed offenders by the trial Magistrate and the cases of the other three accused namely respondents Nos. 1 to 3 were bifurcated from them. Respondents Nos. 4 and 5 were actually not tried by the trial Magistrate Learned counsel for the peti tioner requests for permission to delete their names as respondents from the record. The permission is granted accordingly and their names shall stand deleted.

3. The brief facts of the case are that Muhammad Shafiq, who is the accused convicted in the case by the trial Magistrate, filed a suit for specific performance against Mst. Khurshid Begum, the present petitioner, with respect to an agreement for sale dated 13th August, 1972 purporting to have been executed by the said lady in his favour agreeing to sell a shop to him which was located in her house. Mst. Khurshid Begum, the present petitioner, also filed a suit against the said Muhammad Shafiq, convicted accused, for the cancellation of the said document. On 6th November, 1976, the suit of Mst. Khurshid Begum, the present petitioner, was decreed with compensatory costs and the suit of Muhammad Shafiq, convicted accused, was dismissed. An appeal preferred by Muhammad Shafiq, convicted accused, against the compensatory costs granted against him; but not against the main decree, was allowed and the compensatory costs were set aside. On an application being made by Mst. Khurshid Begum, the present petitioner, before the Civil Judge for proceedings to be taken against Muhammad Shafiq, convicted accused, and others, with regard to the forged agreement for sale which bad been used before him, the Civil Judge filed a complaint against Muhammad Shafiq, convicted accused, the present respondents Nos. 1 to 3 and the two proclaimed offenders before the Ilaqa Magistrate. Accordingly, notices were issued to Dr. Muhammad Rafiq, Abdul Hamid Kiani and Riaz Masih, respon dents Nos. 1 to 3, and Salamat Ali, Abdul Hamid and Muhammad Shafiq. Salamat Ali and Abdul Hamid were declared proclaimed offenders and later the case of the other accused was separated from theirs. Thus, the case proceeded against four accused persons and on 21st November, 1983 the learned Section 30 Magistrate, Toba Tek Singh, convicted Muhammad Shafiq, but acquitted Dr. Muhammad Rafiq, Abdul Hamid Kiani and Riaz Masih, respondents Nos. 1 to

3. Muhammad Shafiq, convicted, accused, preferred an appeal against his conviction and sentence and Mst. Khurshid Begum, the present petitioner, filed a revision petition (No. 107 10-8 of 1983) against the present respondents Nos. 1 to 3 and the two proclaimed offenders for the setting aside of their acquittal and for their retrial. Without taking up both the appeal and the revision petition together, the learned Sessions Judge, Toba Tek Singh, dismissed the revision in limine on 14th December, 1983. It appears that the appeal preferred by Muhammad Shafiq, convicted accused, is still lying pending in the Court of Mr. Ijaz Hussain Gilani, Additional Sessions Judge, Toba Tek Singh. Being aggrieved by the piecemeal disposal of her case, Mst. Khurshid Begum, the present petitioner, has filed the present petition under section 561-A, Cr. P. C., for the quashment of the learned Sessions Judge's order.

4. On behalf of the petitioner it is submitted that at the trial, the Prosecuting Inspector did not produce Ahmad Ali Khan Advocate, Abdul Rehman and Mst. Khurshid Begum, the present petitioner, who were the material witnesses in the case, to give evidence. He also did not prove or get exhibited affidavit Exh. A-1 of Abdul Aziz, deceased/petition-writer, or the affidavit Exh. A-7 of Abdul Hamid Kiani, petit ion-writer/respondent No. 2, which affidavits were proved before the Civil Judge. He also did not prove or get exhibited the judgment dated 6th November, 1976 given by the Civil Judge in favour of Mst. Khurshid Begum, the present petitioner. It is further submitted that the learned Sessions Judge should have heard both the appeal and the revision petition together and not piecemeal dealt with the petitioner's revision first in motion. In this connection it is stated that had both the appeal and the revision petition been heard together, the attention of the learned Sessions Judge would have been directed to the fact that material oral and documentary evidence had not been brought on the record by the Prosecuting Inspector to bring home the conviction against respondents Nos. 1 to 3, which bad occasioned a miscarriage of justice. It is further submitted that the learned Sessions Judge would also have come to the conclusion that the failure on the part of the Prosecuting Inspector to do his duty had placed the case of Shafiq, convicted accused, on a loose wicket, almost justifying his acquittal in appeal, which would not be the case, if the Prosecuting Inspector bad performed his duty.

5. On behalf of the respondents it is submitted that the judgment of the learned Sessions Judge passed in revision has attained finality and that the same cannot be challenged under section 561-A, Cr. P. C. unless the exercise of the jurisdiction under section 439-A, Cr. P. C. has amounted to an abuse of process of the Court or the other conditions of the former section are satisfied. In this connection, learned counsel relies upon The State v. Altaf Hussain (P L D 1978 Lah. 1259).

6. I have given my anxious consideration to this case. There cannot be any doubt that when Mst. Khurshid Begum, the present petitioner's revision petition (Cr. R. No. 107-10-R of 1983) was being beard and decided by the Sessions Judge, Toba Tek Singh, on 14th December, 1983, the appeal preferred by Muhammad Shafiq, convicted accused, was pending in the Court of Mr. Ijaz Hussain Gilani, the learned Additional Sessions Judge, Toba Tek Singh. This is also apparent from para. 7 of the learned Sessions Judge's order. The practice generally adopted by Criminal Courts is to hear all appeals and revision petitions arising out of the same judgment together and to pronounce judgment in these cases together. When a Court is in some doubt as to admitting a revision, the practice is not to dismiss the same in limine in advance, but to allow it to be heard in limine on the date fixed for arguments in the main appeal, so that both can be dealt with together. No doubt, the rule is not absolute and there could be cases in which the circumstances do not warrant that the said procedure should be followed, but in a case, such as the present, where a revision petition is filed and it is asserted that proper evidence was not brought on the record by the Prosecuting Inspector, which has occasioned the acquittal of certain accused or which may even lead to the acquittal of some who have been convicted, the rule of propriety demands that both the appeal and the revision should be heard together, so that the case of either party is not prejudiced. With out causing the transfer of Muhammad Shafiq's appeal to his own Court and hearing the appeal side by side with the revision, the learned Sessions Judge dealt with the petitioner's revision singly, which has caused great prejudice to the petitioner.

7. In a criminal case instituted upon the complaint of a Civil Judge, where the Judge has filed allegations that certain persons have fraudulently and dishonestly produced and used a document before him which they knew or bad reason to believe to be forged, which allegations prima facie make out a case under certain sections of the Pakistan Penal Code, it becomes the duty of the Public Prosecutor, as the representative of the State, to see and ensure that all proper oral and documentary evidence is brought on the record. Such a duty cannot be shifted on the com plainant party, who may also be represented in such a case through counsel. In the instant case, it was the duty of the learned Sessions Judge to have seen whether the Prosecuting Inspector had properly conducted the case and whether all the oral and documentary evidence, which was avail able, had been brought on the record. If not, a duty was cast on the Sessions Judge to decide whether a remand of the case was necessary in the circumstances.

8. A perusal of the trial Magistrate's judgment shows that the Prosecuting Inspector only produced Malik Khadim Hussain, Civil Judge, to give evidence, who proved three documents Exhs. P. A., P. B. and F. C., whereafter the Prosecuting Inspector tendered in evidence two documents, which he did not get exhibited, and closed the case. The whole case rests on the testimony of one witness and some documents.

9. From para. 8 of the Sessions Judge's judgment it appears that the learned Judge has dealt with the case on the principle that as the role of respondents Nos. 1 to 3 was that of abettors and since they were not witnesses to the forged deed, they could not have abetted the offence. The learned Sessions Judge forget that failure on the part of the Prosecution Inspector to produce all the evidence had effected this very matter and could also effect the case of Muhammad Shafiq, convicted accused, who may perhaps be acquitted, if the evidence was wanting. It appears that the revision petition was not dealt with by the learned Sessions Judge on correct legal principles, which, I am afraid, has led to an abuse to the process of the Court and is otherwise also likely to lead to injustice. The judgment of the learned Sessions Judge, therefore, deserves to be quashed.

10. For the foregoing reasons, this petition is accepted and the judg ment of the learned Sessions Judge dated 14th December, 1983 is set aside. The petitioner's revision petition (Cr. R. No. 107-10-R of 1983) is reman ded back, so that the same may be heard and decided together with F Muhammad Shafiq's appeal, which is presently pending before Mr. Ijaz Hussain Gilani, Additional Sessions Judge, Toba Tek Singh. Since the learned Sessions Judge, Toba Tek Singh, has already expressed his opinion on this revision petition, both the revision petition and the appeal should not be disposed of by him.

11. The learned Judge who shall hear and decide the revision and the appeal should not be influenced by any findings or observations given in this order. Note: The Registrar is hereby directed to place this judgment before the learned Acting Chief Justice, so that his attention may be drawn to the peculiar practice adopted by Malik Abdul Majid Tiwana, Sessions Judge, Toba Tek Singh, is not dealing with the appeal and revision petition, filed by the parties and arising out of the same judgment, together but piecemeal dealing with the revision petition first in motion and dismissing the same. In the instant case, the revision petition filed before the Sessions G Judge alleged that the Prosecuting Inspector did not cause to be produced all the evidence before the Court, which was necessary in the circumstances, with the result that miscarriage of justice occurred and the respondents were acquitted. Instead of deciding both the appeal and the revision together, the learned Sessions Judge dismissed the revision petition piece meal in limine. The disposal of the revision petition piecemeal by the learned Sessions Judge caused prejudice to the petitioner. M. Z. M. Appeal dismissed.