P L D 1958 Karachi 86 (PLP)

LARI, J.--‑ The applicant Sheikh Abdul Majid has filed this Petition praying that the charge framed against him in case No. 184 of 1955 pending before Mr. Ali Jawad, Additional District Magistrate be set aside and proceedings be quashed. It appears that the Special Police made enquiries into certain allegations against the applicant and submitted a charge‑sheet which runs in the following words " That the accused Mr. S. A. Majid was allotted Liberty Cinema an evacuee property on Bunder Road, Karachi by the Collector of Karachi and Deputy Rehabilitation Com missioner vide his order No. 1422 A. R. C. on 1st February 1949 on the terms and conditions that (1) The lessee shall not sublet or dispose of the premises in a manner other than specified in their application dated 22nd November 1949. (2) The lessee shall complete the incomplete building within a period of next 6 months, furnish it and equip it with the Cinema apparatus etc. at their costs and the expenditure so incurred by the lessee will be charged on the said evacuee property. It was found that the accused violated the above terms and conditions and converted the above cinema building into shops and offices without lawful authority and gave them to merchants. The accused floated 5 companies under different names of which he is the managing director and handed over the shops to the merchants who purchased 100 rupee shares of the different companies floated by him. He thus collected above 4 lacs of rupees from the needy businessmen and later issued them shares of only 10 10 of the total amount collected by him from the merchants whose details are given in column No. 4 of the charge‑sheet and the list attached to the charge sheet. The accused mis‑appropriated the amount of above rupees 4 lacs from the aforesaid complainants by deceitful means on different occasions within a year and the amount mis appropriated and the dates of misappropriation are shown in the respective columns against the name of each com plainant. From the investigation a pima facie case has been made out against the accused under sections 408, 420, P. P. C. and hence the accused is sent up to stand his trial on aforesaid charges. The charges will be tried jointly as enumerated in section 222, Criminal P. C." Mr. Ali Jawad took cognizance on the basis of this challan, recorded evidence and ultimately drew a charge against him in the following words : "That between January 1950 and April 1950 you cheated Muhammad Ilays of Rs. 7,000, Manzoor Elahi of Rs. 5,000 and Nazir Husain of Rs. 2,000 paid by means of two cheques of Rs. 500 and Rs. 1,500 each, by misrepresenting to each of them that you would build shops and offices in the damaged Liberty Cinema building and make them each individually owners of an office or shop in the said building, which you did not do and which you had no intention of doing." The first contention of Mr. Hamidul Haq Choudhry appearing on behalf of the applicant was that the Special Police could not submit the challan to an ordinary Magistrate as any case enquired into by the Special Police must be taken cognizance of by the Special Judge This objection is not open in view of decision of the Federal Court reported in Crown v. Mehar Ali (P L D 1956 F C 106). Their Lordships observed : By section 4 the cases which a Special judge was com petent to try were such as might be sent to him for trial by the Pakistan Special Police Establishment or such as may be transferred to him by the Central Government. These provisions cannot, in our opinion, serve to sustain any conclusion that, as they stood in 1952, they were intended to give a Special judge appointed under the Pakistan Criminal Law (Amendment) Act, 1948, exclusive jurisdiction in relation to offences, committed by Central Government servants, of the kind specified in the Schedule to the Act. In fact the applicant is not a Government servant at all and one of the contentions raised in the petition for revision was that the Special Police Establishment was not competent to enquire into alleged offence inasmuch as it did not pertain to a Government servant. This objection however was not pressed at the Bar. I may, however, note that a mere B irregularity in investigation cannot affect the legality of proceedings in a Court of law. The main contention raised on behalf of the applicant was that the alleged offence fell within the purview of section 24 of Ordinance (XV of 1949) and such an offence could not be taken cognizance of without the sanction of the prescribed authority. It may be mentioned that this objection had not been taken in the petition of revision and was put forward for the first time in the course of arguments. A large number of cases have been cited but to me it seems that the principle has been properly laid down in case Tarachand Wadhumal v. Emperor (A I R 1944 Sind 130). It was observed by the learned judges therein : "Where the facts primarily and essentially disclose an offence under section 210, Penal Code, the other offences alleged being merely subsidiary to the main offence the complainant could not be permitted to evade the provisions of section 195, Criminal P. C., by omitting section 210 from the complaint." To the same effect is the decision by a Bench of this Court reported in case Munshi Noor Ahmad and others v. Malik Abdul Rehman (P L D 1957 B J 10). His Lordship the Chief Justice observed that "the test in such cases was whether primarily and essentially the allegations made would pertain to an offence which cannot be tried without sanction of the pre scribed authority." I have therefore to see whether the primary offence disclosed against the applicant was that under section 24 of Ordinance (X V of 1949) or under section 420, P. P. C. The Special Police Establishment took notice of the case because they detected cheating in the transaction attributed to the applicant. No doubt they mentioned that the applicant had violated the conditions of allotment but they were primarily concerned with the subsequent trans action which on the basis of allegations made amounted to an offence of cheating. Mr. Ali Jawad also confined the charge to one of cheating. Judged by the above test which cannot be disputed I have come to the conclusion that the J main offence which was alleged against the applicant was that under section 420, P. P. C. and the allegations which could constitute an offence under section 24 were made in order to elucidate the position. I must not be considered to express an opinion that where two distinct offences are disclosed by one complaint and only one offence is cognizable by the Court without any prior sanction then a Court cannot take cognisance of even that without sanction as to the others. I am inclined to be of the view that where two distinct offences are dis closed on the face of a complaint one of which cannot be tried by a Magistrate without sanction he is not precluded by trying the other offence simply because the, first cannot be taken cognisance of without the prior sanction. Any way this is a tentative opinion and should be considered finally when such a case comes for consideration. There is no force in this revision petition. It is rejected. The disposal of the case has been delayed because of the pendency of this revision petition. It is necessary that the case should be disposed of quickly by the learned Magistrate. Z. A. S./A. H. Petition rejected.