1991 P Cr (PLP)

SARDAR SAID MUHAMMAD KHAN, CJ.

This appeal has been directed against the order of the Shariat Court, dated 14-4-1990 whereby accepting the revision petition, the order of the District Criminal Court was set aside and a direction was given to the trial Court to consider the question as to whether the process should be issued to the appellants herein, or not. Brief facts giving rise to the present appeal are that a complaint was filed by Ghulam Rasool Mir, respondent, against the appellants, herein, and others under sections 302, 148/149, Penal Code read with section 4/5 of the Islamic Penal Laws (Enforcement) Act, 1974. According to the complainant, on 22nd June, 1982, his two sons were assassinated in the Muzaffarabad Town at about 8-30 p.m. Consequently, the police registered a case and the appellants herein, except Ibrar Ehsan and Irfan Ashraf, were challaned to face trial under the aforesaid offences. The complainant, feeling aggrieved by the police investigation, brought a private complaint in the District Criminal Court against the appellants, herein, and other accused who were arrayed as pro forma respondents but their names were struck off by this Court's order dated 17-11-1990. The trial Court made a preliminary inquiry in the matter and consequently recorded the statements of complainant, Jamil Ahmad Butt, Muhammad Yusuf, Kh. Muhammad Bashir, Abdul Jabbar and Habibullah. Documentary evidence in form of post-mortem reports of the two brothers alleged to have been murdered was also placed on the record. After hearing the arguments, the District Criminal Court dismissed the complaint holding that there was no prima facie case against the accused warranting the issuance of process against them. A revision petition was preferred to the Shariat Court which was accepted vide impugned order and the District Criminal Court was directed to reconsider the matter. We have heard the arguments and perused the file. The learned counsel for the appellants has argued that the impugned order is not sustainable; because the appointment of Sardar Sajawal Khan as Additional Judge of the Shariat Court for hearing and disposal of the relevant revision petition was not according to law and, thus, the impugned order stands vitiated. The learned counsel has maintained that before the appointment of Sardar Sajawal Khan, the Chief Justice of the Shariat Court was not consulted as required under relevant law and, thus, the appointment of the learned Judge was defective. In reply, it was contended that the appointment of Sardar Sajawal Khan as Additional Judge of the Shariat Court did not suffer from any legal infirmity and even otherwise the judgment of a de facto Judge cannot be annulled on the ground that the appointment of a Judge was defective for one reason or the other. The learned counsel for the appellants has cited the following authorities in support of his contention: In re: Patan Alli Khan A I R 1947 Mad. 248, it was held that the officer writing the judgment and pronouncing it should be the same. The judgment in that case was written after the Judge was transferred to another division. The facts of the case were that the Session -Judge was transferred to another Sessions Division after he had recorded the evidence of a case and heard the arguments. He handed over the charge to his successor but instead of joining his duties in the other division immediately, wrote the judgment, signed it and handed it over to his successor who pronounced it in the Court as his predecessor's judgment convicting two accused and acquitting the other two. On appeal by the convicted persons, it was observed that section 367, Cr.P.C. did not authorise a succeeding Judge to pronounce a judgment of his predecessor. It was held that the previous Judge having become detenu officio on handing over his charge to his successor had no jurisdiction to write a judgment and his successor had no jurisdiction to pronounce it. It was observed that the judgment, which was written without jurisdiction was no judgment; rather the same was an expression of the predecessor's opinion and as such there was no judgment capable of being cured under section 537, Cr.P.C. It was further observed that a Sessions Judge who was transferred had ceased to be the Sessions judge of division concerned and had not become the Sessions Judge of another division and, thus, he had no powers as a Sessions Judge simpliciter. It was held that the Sessions Judge had jurisdiction to exercise the powers of a Sessions Judge only by virtue of his appointment to a particular Sessions Division and not otherwise. In J.B. Mangharam & Co. Gwallior v. K.E. Kher A I R 1956 Madhya Bharat 183 it was observed that expression `District Judge' used in section 7(3)(b) of the Industrial Disputes Act does not include an Additional District Judge. It may be observed that it was a case of quo warranto whereby the non-petitioner was issued a show-cause notice under section 226 of the Indian Constitution to explain as to under what authority of law he was functioning as Tribunal under Industrial Disputes Act, 1947. In Muhammad Ayub Khuhro v. Pakistan P L D 1960 SC (Pak.) 237, it was held that Special Judge appointed under the Pakistan Criminal Law Amendment Act of 1958 was not competent to take cognizance of or to try the offence of `Black-marketing' falling under Martial Law Regulation No.26 read with Martial Law Regulation No.5 and, thus, the proceedings taken were held to be without jurisdiction and declared as void and Coram non judice. In reply, the learned counsel for respondent No.l has argued that the appointment of the Judge concerned did not suffer from any legal infirmity and even otherwise an order or judgment passed by a de facto Judge would be deemed to be valid under law. It was further contended that such an objection cannot be raised by the parties in a private litigation; especially so when the concerned Judge is not a party to such litigation: In Gokaraju Rangaraju v. State of Andhra Pradesh 1983 PSC 890, it was held that if the appointment of a Judge is declared invalid by the Supreme Court, the declaration will not affect the judgments, decrees etc. which had already been passed by the Judge. It was further observed that the contention that since the appointment of a Judge was itself invalid, so all judgments, decrees etc. passed by him were invalid, is not correct. It was opined that a de facto Judge is one who is not a mere intruder or usurper but one who holds office under colour of lawful authority even though his appointment is defective and may later be found to be so. It was further held that the appointment of a Judge cannot be questioned m proceedings to which he is not a party. The principle of collateral attack on the validity of appointment of the Judge was held applicable and, thus, it was opined that a stranger cannot question the validity of the appointment of a Judge in private litigation. In Parameswaran Pillai Bhaskaran Pillai v. State Prosecutor A I R 1951 Travancore-Cochin 45, it was observed that the right of a de facto Judge to hold his office cannot be questioned in private litigation and, thus, it was unnecessary to pronounce upon objection whether the appointment had been made in contravention of law because even assuming for the sake of arguments that the Judge had no right to hold the office on the relevant date, his judgments were not open to attack on this ground. It was further opined that the status of a do facto Judge who has only colourable title to the office and acts as such, is not open to objection. A number of authorities from Indian as well as foreign jurisdiction was considered and relied upon in this case. In Muhammad lqbal v. Member. Board of Revenue, Punjab N L R 1981 Civil 32, it was opined that the proceeding by a Judge cannot be set aside or ignored even if subsequently it is found that the appointment was not valid. We have given our due consideration to the arguments raised in the light of the authorities cited by the learned counsel for the parties. The authorities cited by the learned counsel for the appellants, referred to above, are distinguishable and not applicable to the facts of the case in hand. In those cases the defect pertained either to the territorial jurisdiction or the concerned Judge appointed was debarred to exercise power as such under the relevant statute. Evidently, none of the said cases cited by the learned counsel for the appellants deals with the question of effect of an order or judgment pronounced by a de facto Judge. The authorities cited by the learned counsel for the respondent directly, deal with the point involved in the present case. In case reported as Gokaraju Rangaraju v. State of Andhra Pradesh 1983 PSC 890, referred to above the matter has been dealt in detail wherein it has been observed that a judgment passed by a de facto Judge is not invalid and the same would operate as if the Judge was validly appointed. The relevant extracts from the aforesaid judgment are reproduced as under: "The doctrine is now well-established that `the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, arc generally as valid and binding, as if they were the acts -f officers de jure' (Pulin Bchari v. King-Emperor (1912) 15 Cal L J 517 at p.

574. As one of us had occasion to point out earlier `the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine' (vide Immedisetti Ramkrishnaiah Sons v State of Andhra Pradesh A I R 1976 Andh. Pra. 193). In Pulin Behari v. King Emperor, Sir Asutosh Mookerjee, J. noticed that in England the do facto doctrine was recognised from the earliest time. The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fontaine decided in 1431. Sir Ashutosh Mookerjec noticed that even by 1431 the de facto doctrine appeared to be quite well-known and, after 1431 the doctrine was again and again reiterated by English Judges. In Milward v. Thatcher (1787) 2 TR 81 at p. 87, Buller, J. said: `The question whether the Judges below be properly Judges or not, can never be determined, it is sufficient if they be Judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected the conviction would still be good in law, he being the Judge de facto'. `A person appointed as a Sessions Judge; Additional Sessions Judge or Assistant Sessions Judge would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed." A I R 1976 Andh. Pra. 193 - (1912) 15 Cal L J 517 - (1787) 2 TR 81 - (1851) 3 GKC 413 - (1977)2 WLR 1 = (1983) 15 NZLR 316) - Cases on Constitutional Law by Me Gonvey and Howard, 3rd Edn. 102 - (1886) 118 US 425: 30 L ed 178 - Cooley's Constitutional Limitations, 8th Edn. Vol. II, p.1355 -A I R 1970 Ker. 165 - A I R 1906 SC 1987 ref.) `A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a do facto Judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise so soon as a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's title to his office cannot be brought into jeopardy in that fashion. Hence,, the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack." It is amply clear that the law on the question in dispute is settled that a judgment or order passed by a de facto Judge cannot be set aside on the ground that the appointment of a Judge was violative of law. The view rests upon the doctrine of necessity and public policy. If the parties arc permitted to raise the aforesaid objection in private litigation, it would cause embarrassment to the Judge and open the door to attack the authority of the Judge in private proceedings to which the concerned Judge is not a party and no opportunity to defend him is given. the appointment of a .fudge is open to challenge by seeking a writ of quo warrant and not by raising an objection by a party in private litigation. This view is not only followed by the superior Courts of Pakistan and India but also the Courts in United States of America and United Kingdom. It follows from what has been stated above that the objection with regard to the validity of the judgment on the aforesaid ground cannot,, be permitted to be raised in the present proceedings. As the validity of impugned judgment would not be affected on the basis of the said objection, we need not go into the merits of the objection as to whether the appointment of the concerned Judge was valid or not; especially so when he is not before us as a party. Next, it was contended that as the appellants, except appellants Nos.3 and 4, were not heard by the Shariat Court while disposing of the revision petition, it would he deemed that they were condemned unheard. The perusal of the record shows that the other appellants were previously represented both by Raja Muhammad Hanif Khan and Mr. Abdur Rashid Abbasi, Advocates. There are two applications dated 16-6-1987 on the record on behalf of lbrar Ehsan, Amjad Hussain, Abdul Majeed and Dil Bahar Awan through Mr. Abdur Rashid Abhasi, Advocate. Similarly, the interim order dated 18-6-1987 reveals that Raja Muhammad Hanif Khan and Mr. Abdur Rashid Abbasi, Advocates, represented the accused persons who are appellants before us; interim order dated 8-2-1990 reveals that Javed Akbar, Dil Bahar, Abdul Majeed, Amjad Hussain, accused. appeared alongwith their counsel, Raja Muhammad Hanif Khan, Advocate; order dated 30-3-1990 shows that Javed Akbar, Dil Bahar, Abdul Majeed and Amjad Hussain were again represented by Raja Muhammad Hanif Khan and Raja Nasim, Advocates. It was for the first time on 31-9-1990 that Javed Akbar, Abdul Majecd, Amlad Hussain and Dil Bahar accused were recorded to be present in person and Mr. Ahdur Rashid Abbasi and Raja Muhammad Hanif Khan. Advocates, appeared on behalf of Irfan Ashraf and Ibrar Ehsan, accused. There is nothing on the record to show that the appellants before us had revoked the authority which was given to Raja Muhammad Hanif Khan and Mr. Abdur Rashid Abbasi, Advocates, al the lime of arguments nor any prayer was made by the said appellants that as they were not represented by any Advocate, the case should be adjourned to enable them to engage a counsel. It is correct that the interim order dated 2-4-1990 records tile presence of .laved Akhar, Abdul Majeed, Amjad Hussain, Dil Bahar, accused, in person and Mr. Abdur Rashid Abhasi and Raja Muhammad Hanif Khan, Advocates, are recorded to represent Irfan Ashraf and Ibrar Ehsan but all the same there is nothing on the record that the arguments were addressed only on behalf of two accused-appellants or the other appellants were denied hearing despite their prayer in that regard. Next, it was contended by the learned counsel for the appellants that the learned Judge in the Shariat Court had not properly appreciated the point that the private complaint was filed after about nine months and, thus, the delay casts doubt on the genuineness of the case set up in the complaint. He has referred to a case reported as Khatija v The State P L D 1978 Kar. 348 wherein it has been observed that it is true that there is no limitation in criminal proceedings but on the other hand if the complaint is filed aft r undue delay, the chances of believing in the truth of the case are lessened." The learned counsel for the respondents controverted the argument advanced on the point and cited a case reported as Sher Ali Khan v.- The State 1985 P Cr. L J 349 wherein it was opined that delay in filing the complaint was only a suspicious circumstance and, thus, the delay by itself was not sufficient to reject the evidence in support of complaint which might otherwise be entitled to credence. The perusal of the impugned order shows that the learned Judge in the Shariat Court has spelled out the circumstances as explanation for delay in lodging the complaint. Be as it may, no hard and fast rule can be laid down as to when the delay in such a case would adversely affect the case of the complainant. It depends upon the circumstances of each case and the nature of the explanation, which may be put forth by the complainant or may be ascertained from the circumstances of the case. It is neither possible nor proper at this stage to opine as to whether the delay in this case would be fatal to the case of the complainant. I the matter is to be adverted to by the trial Court in the light of the circumstances of the case. Next, it has been contended by the learned counsel for the appellants that the powers of revisional Court as envisaged under the relevant provisions of law are limited and the view taken by the trial Court is not disturbed until and unless it is shown to be perverse or some illegality or material irregularity has been committed by the trial Court. He has cited the following authorities in support of his contention: In Muzaffar Khan v The State 1970 P Cr. L J 483, it has been held that revisional jurisdiction of the Court is distinguishable from the appellate jurisdiction; a revisional Court can review the evidence and arrive at its own conclusion where the assessment of the evidence by the Courts below is perverse or a reasonable man would not come to the conclusion arrived at by the Courts below. It may be observed that this case pertained to conviction in a criminal case and the High Court made the above observations while dismissing the revision petition and upholding the conviction and sentence passed by the Sessions Judge. In Muhammad Abbas v The State P L D 1988 SC (A.1&K) 14 the matter pertained to hail and it was observed that merits of the case are not to be gone into at the appellate stage by the superior Courts as that is the exclusive function of the trial Court. In Khadim Hussain Khan v The State P L D 1982 SC (AJ&K) 13, it has been observed that the revisional jurisdiction can be exercised by the High Court only in exceptional cases where the interest of justice requires interference for correctness of manifest illegality or for prevention of gross miscarriage of justice The above observation was made while dismissing the petition for leave to appeal which was preferred against the dismissal of the revision petition by the High Court. In Syed Ghulam Murtaza v. Babar Akbar P L J 1982 SC (AJ&K) 96, the matter pertained to a dispute of immovable property and proceedings were taken under section 145, Cr.P.C. It was observed by the Supreme Court that the revisional scope of the High Court being limited, the question of fact could not be reopened unless the same suffered from illegality rendering the order perverse or manifestly unjust. It may be observed that in that case the application under section 145, Cr.P.C. was rejected after making detailed inquiry regarding the question of possession. In Karamat Hussain v. Faraqat Hussain 1988 P Cr. L J 2421 the facts were that the trial Court refused further opportunity to the petitioner for producing some persons as witnesses and, thus, the evidence was closed. The High Court found that in the circumstances of the case the closure of evidence was justified and did not call for interference. The Supreme Court affirmed the view of the High Court observing that as the order passed was not illegal or perverse, the High Court was right in refusing to vacate the same in exercise of its revisional jurisdiction. In reply, the learned counsel for the respondent has argued that the revisional Court has wide powers to correct the miscarriage of justice in exercise of its revisional jurisdiction if the order is found to be perverse or if the same is based on a wrong approach, the non-reading or misreading of the evidence. The learned counsel has maintained that in the instant case, the trial Court has based its opinion after considering the material in challan case. He has contended that it has been specifically recorded by the trial Court that the F.I.R. filed in the challan case and the statements recorded in that case by the police detract from the truth of allegations levelled in the complaint. This, according to the learned counsel, has vitiated the findings of the trial Court because in a criminal case the proceedings are to be decided on the material on the record of that, proceedings and not on the record of another case as has been done in this case. He has referred to the following authorities in support of his contention: In Nur Ellahi v. The State P L D 1966 SC 708, the procedure in case of a private complaint and challan about the same incident has been laid down. It was further opined that in every criminal case proceedings are to be decided on the material on the record of that proceeding and neither the record of another case nor the landings recorded therein should affect the decision. It was held that if a Court takes into consideration the evidence recorded in another case, the finding recorded would vitiate. (Underlining is our). In Muhammad Mian v The State 1971 P Cr. L J 598 it was held that in case of a private complaint, the Magistrate, on receiving direction under section 436, Cr.P.C., is competent to issue process against the accused and he need not take further evidence or make a fresh inquiry. It was observed that order of dismissal of complaint is not an order of discharge or acquittal and, thus, the Magistrate is competent to issue process against the accused on reconsideration of the material on the record. In Karhley v. Jagannath Prasad A I R 1925 Oudh 180, it was held that a revisional Court has power to order further inquiry even when the subordinate Magistrate has recorded all the evidence of the prosecution, if it comes to the conclusion that the findings of the Magistrate are either perverse or manifestly at variance with the evidence on the record. In Diwan Singh v. Emperor A I R 1933 Lah. 561, it was held that while passing an order of further inquiry under section 436, Cr.P.C. a broad view of the material on the record should be taken and Court should not pick and choose the fragments of the evidence. In Messrs Kirpa Ram Jagan Nath v. Thakar Hans Raj A I R 1950 East Punjab 18, it was held that the Sessions Judge can direct further inquiry in case of dismissal of a complaint under section 203, Cr.P.C. without issuing notice to the accused. It was further opined that it would be undesirable to issue notice to the accused person in such a case because the accused person has no locus standi to appear in an inquiry under Chapter XVI of the Cr.P.C.; the principle was held to be equally applicable where the order of the trial Court is challenged by way of a revision. In the State v. Nakulram P L D 1972 Kar 351, it was held that inquiry in case of a private complaint under Chapter XVI is not intended to be substituted for a regular trial. It is held only with an object to save a person from baseless allegations. In Abdul Hamid v. Abdul Aziz 1983 P Cr. L J 2241, it has been observed that the purpose of inquiry under section 202, Cr.P.C. is merely to see whether or not process should be issued against the person named in the complaint and it should not partake character of a full dress rehearsal for a trial. It has been further opined that the Magistrate entrusted with the proceedings under section 202, Cr.P.C. has no jurisdiction to weigh the evidence as to whether the prosecution has succeeded in proving its case or not. In Muhammad Ibrahim v. Muhammad Hanif 1983 P Cr. L J 1051, it was observed that an accused can be summoned on a private complaint if there is a prima facie case irrespective of the view of the police with regard to the acquittal of the accused person. It was further observed that examination of Police Officer who investigated the case was not necessary. It is evident from the authorities cited at the Bar, referred to above, that there is no hard and fast rule as to when a revisional Court is justified in exercising its revisional jurisdiction. There can be various reasons justifying the exercise of revisional powers. In the instant case the Shariat Court directed the reconsideration of the material, inter alia, on the ground that the trial Court had committed a grave illegality by considering the record of challan case while dismissing the complaint. We fully endorse the view taken by the Shariat Court that the record of one criminal case could not be read in another criminal case. The perusal of the order of the trial Court clearly shows that the trial Court was, influenced by the material which was part of challan case. The trial Court has also I mentioned in the relevant order that it has also gone through the police record of the said case while passing the order in the complaint. This is not permissible under law. The fate of the complaint in a criminal case should be decided only in view of the evidence which a Court may record for its satisfaction as to whether there was a prima facie case against an accused person or not. Even a detailed scrutiny of the evidence at the preliminary stage is not appreciated as has been held in a case reported as Abdul Hamid v. Abdul Aziz 1983 P Cr. L J 2241 wherein it has been observed that the purpose of inquiry under section 202, Cr.P.C., is merely to see whether or not process should be issued against the person named in the complaint and it should not partake character of a full dress rehearsal for a trial. It has been further opined that the Magistrate entrusted with the proceedings under section

202. Cr.P.C. has no jurisdiction to weigh the evidence as to whether the prosecution has succeeded in proving its case or not. It has been further contended that the learned Judge in the Shariat Court has committed an error while making the following observation in the impugned order: "While going through the evidence on the rile I find that the evidence on the file has got all necessary elements to make out a `prima facie' case against the respondents." It has been contended by the learned counsel for the appellants that the learned Judge in the Shariat Court, by making the above-cited observation, has in a way expressed his opinion and, thus, it was amounting to a direction to the trial Court to issue process against the accused. We are of the view that there is much weight in the argument of the learned counsel for the appellants. The learned Judge should have desisted from making such an observation because primarily it was for the trial Court to make its independent opinion as to whether the process should be issued against the accused persons or not. Next, it has been contended by the learned counsel,, for the appellants that the learned Judge in the Shariat Court has also directed the accused persons to appear before the trial Court. It has been vehemently argued on behalf of the appellants that by giving such direction, the learned Judge in the Shariat Court has not only committed an error in law but also indirectly influenced the trial Court that there was prima facie case against accused persons justifying the issuance of the process; thus direction to reconsider the material is merely a normality. It may be stated that the learned Judge in the Sharial Court has again committed error in law by directing the accused persons to appear in the trial Court. Tire question of appearance of the accused persons would arise only if the Court comes to the conclusion that there was prima facie case against the accused persons. The aforesaid conclusion could be drawn by the trial Court after reconsidering tile material excluding the material of challan case or view taken by I the police. In the light of what has been stated above, we partly accept the appeal to the extent that the direction given to the accused persons by the Shariat Court to appear in the trial Court would be deemed to be non-existent; besides, the trial Court shall not be influenced by any observation made by the Shariat Court regarding the existence or otherwise of a prima facie case against the accused persons and shall form its independent view as to whether process should be issued to the accused persons or not. Except to the extent of the aforesaid modification, the impugned order stands. N.H.Q./296/S.C.A. Appeal partly accepted.