1998 P Cr (PLP)

Mian Muhammad Haneef for Appellant. Abdul Rauf Farooqi for the State. Date of hearing: 16th July, 1997. Since common question is involved in Criminal Appeal No.523 of 1994, Criminal Appeal No.537 of 1994, Criminal Appeal No:263 of 1995 and Criminal Appeal No.285 of 1995, I intend to dispose of the same by this single judgment.

2. Vide abovementioned appeals, the appellants have assailed judgments, dated 28-9-1994 and 16-4-1995 passed by Syed Ijaz Hussain Rizvi, Special Judge, Anti-Corruption, Lahore, on the grounds, inter alia that the learned Judge was not eligible to be posted as Special Judge, Anti-Corruption, he having incurred disability to act as such, therefore, the convictions in the abovementioned cases are illegal and as such appeals be accepted and the appellants be acquitted. Reliance placed on Mahmoodul Hassan v. The State 1984 PCr.LJ 1107 and Muhammad Riaz and 2 others v. The State 1996 PCr. LJ 1007.

3. Precise contention raised by the learned counsel for the appellants was that the qualification prescribed for appointment to the post of a Special Judge was not fulfilled by Syed Ijaz Hussain Rizvi and as such he could not be appointed as Special Judge. My attention was drawn to Pakistan Criminal Law Amendment Act (XL of 1958), section 3(2). Perusal of this section shows that no person could be appointed as a Special Judge unless he was qualified to be a Judge of the High Court or has been an Additional Sessions Judge or Sessions Judge and has not retired from Government service or at any time removed or dismissed from service. I was told that Syed Ijaz Hussain Rizvi had been removed from service and as such had incurred disability to act as Special Judge.

4. Learned counsel for the State conceded that Syed Ijaz Hussain Rizvi had been removed from service and, therefore, he was not competent to be appointed as a Special Judge, but he contended that the request of the appellants that they be acquitted on that ground, be not accepted rather the case be remanded for fresh decision.

5. In an earlier case reported in 1996 PCr.LJ 1007, the status of Syed Ijaz Hussain Rizvi was thoroughly discussed. It was stated therein that Mr. Rizvi was appointed as Additional District and Sessions Judge on 23-8-1984 and was on probation for two years. Nevertheless, the probation period was extended for another year i.e., upto 23rd August, 1987. During this period of probation, however, services of Mr. Rizvi were terminated on 19-8-1987. This termination order was then rescinded by an order, dated 23rd May, 1988. After this order was passed, Mr. Rizvi, was not accepted in the judiciary by the High Court and, therefore, the Government took him on the executive side and posted him in the Food Department of the Province. This aspect was discussed and the case of another Special Judge who hail been removed from service was also discussed that is, that of Mr. Muhammad Islam. The case of Mr. Islam was on a different footing than that of Mr. Rizvi, as the former was not on probation when he was removed from service rather he had rendered fairly a long service and had been retired prematurely, but thereafter, the order of his retirement was recalled and thence he was appointed as a Special Judge. In the other case i.e. 1984 PCr.LJ 1107 the same position pertained to the learned Special Judge namely Mr. Anwar Shariq, who had been retired and then re-instated and. thence appointed as a Special Judge. So, therefore, the case of those Special Judge who had been retired from service and the case of a Special Judge who had been removed from service during probation period obviously cannot be equated with one another. In the case of Mr. Rizvi, two facts are apparent, one that he had not yet completed the probationary period and removed from service; second, after the re-instatement, he did not work even on probation as an Additional District and Sessions Judge, rather worked on the executive side. It, therefore, follows that he had not even completed the probationary period as an Additional Sessions Judge, therefore, he could not be considered to have been inducted in the service even as an Additional District and Sessions Judge. This aspect, I have been told, was very much in the knowledge of the authorities who appointed him as a Special Judge and the flaw regarding this appointment was brought to the notice of the High Court and the High Court in turn, it is stated at the Bar, informed the Government of this disability, but the appointment was not rescinded.

6. Be that as it may, it is manifest from the intention of the authorities, who enacted the law in relation to the appointment of Special Judges that only such Judicial Officers were intended to be posted as Special Judges who had spotless career, meaning thereby that they were never, for any reason, removed from service and even if they were re-instated after removal they were held to have incurred the disability to be appointed as Special Judges. It, therefore, follows from the above discussion that Mr. Rizvi was not eligible to be appointed as a Special Judge, Anti-Corruption. Consequently the appeals are accepted and convictions of the appellants set aside. But the prayer that the appellants be acquitted, to my mind, cannot be acceded to as the interest of justice requires that the adjudication be done by a forum fully clothed with the authority to-act as a Special Judge and who does not suffer from any disability. 'Since in the above cited cases the trial of the appellants was taken up by a forum incompetent to try, I order the retrial of the cases de novo. I, therefore, remit the cases for decision on merits afresh. N.H.Q./M-422/L Case remanded.