P L D 1966 (W (PLP)

Dated 5‑6‑1962. Notary Public."

4. On the strength of the above facts Mr. Dingomal appear ing on behalf of the applicants has contended, in the first instance that by reason of section 3 of Act XII of 1957, property not treated as evacuee property immediately before 1‑1‑1957, shall continue to be treated as non‑evacuee property after the said date. The learned counsel pointed out that the proceedings against his client before the Custodian commenced on 10‑7‑1958, long after the prescribed date. Secondly, the learned counsel has contended‑ that the complaint as filed against his clients the petitioner accuses them of having obtained wrong mutations through fraud and misrepresentation from the City Survey Office. In A I R 1936 Bom. 221 a City Survey Officer has been held to be a Court within the meaning of that term as appearing in section 195 (2), Cr. P. C. and, therefore, Mr. Dingomal contended that section 195 (1) is a bar to the maintenance of these proceed ings. The learned counsel also relied upon the judgment of Davis, J. C. in A I R 1937 Sind 81 wherein it was held that a complaint at the instance of a private person where there has been an evasion of the provisions of section 19.5, Cr. P. C. is not proper and cannot be sustained. He also preferred to A I R 1940 Sind 100 in which it was held by a Division Bench that offences under sections 193 and 467, P. P. C. committed during mutation proceedings to require the complaint of the Mukhtiarkar concerned.

5. Mr. A. R. Kazi, the learned Advocate appearing on behalf of the State concurred with and supported the arguments advanced by the learned counsel appearing on behalf of the applicants. He invited my attention to two Criminal Revision Applications Nos. 558 and 633/64 recently decided by this High Court in which under similar circumstances Faruqui, J. had quashed the order of a Magistrate issuing process in complaints filed by Moulana Abdul Quddus Bibari against other Hindus under sections 420, 424 read with section 120‑B, P. P. C.

6. To me it is plain that the two contentions advanced by the learned counsel appearing on behalf of the applicants in this matter must be upheld. Apart from the hurdle that section 3 of Act XII of 1957 offers to the maintenance of this prosecution, the obstacle presented by section 195, Cr. P. C. is of greater import. According to the complainant Maulana Abdul Quddus Bihari, as said by him in his complaint, the applicants/accused "through fraud and misrepresentation got mutated the evacuee properties of the legal heirs of Dr. Valiram who died in India in the name of Chandra Bai accused No. 1 with a motive to deceive and cheat Pakistan Government and to transfer its national wealth to India by so selling the evacuee properties." Now this mutation was done by the City Survey Officer who as held by the Bombay High Court in the case referred to above and reported in A I R 1936 Born. 221 is a Court within the meaning of section 195 (2), Cr. P. C. Hence, this complaint could only be filed at his instance and, therefore, because of the bar of section 195 (1), Cr. P. C. I must hold that this complaint is not maintainable and quash these proceedings now pending against the applicants in the Court of the City Magis trate, Hyderabad.

7. In Cr. Revision Application No. 599/64 the relevant facts are that Mr. Jhamatmal Bilaram died at Bombay on 15‑5‑1957 while on a short visit on a temporary visa there. He was a non‑evacuee and he died leaving a Will dated 31‑3‑1955 in which he had be queathed all his properties to his widow Popribai the present applicant. Moulana Abdul Quddus Behari started proceedings against this widow before the Assistant Custodians at Nawabshah and at Hyderabad and on 15‑11‑1960 Mr. Riazuddin, then Additional Custodian (Judicial) E. P. Hyderabad and Khairpur Divisions held that the Will left by Mr. Jhamatmal was a genuine will and that all the urban and agricultural properties left by him are his self‑acquired properties which he was competent to bequeathe to his wife to the exclusion of his evacuee sons. This order of the Additional Custodian was confirmed by Illahi Bux Khamisani, J. then Custodian E. P., Karachi by his order dated 10‑4‑1961 which is in these words:‑-- "The order of the Additional Custodian (Judicial) E. P., Karachi dated 15‑11‑1960 is hereby approved. Illahi Bux Khamisani, Custodian E. P., Karachi, dated 10‑4‑1961." Thereafter, Moulana Abdul Quddus Bihari on 31-10‑1963 submitted a further miscellaneous application to the Custodian Department contending that the properties in question are evacuee properties and the will a bogus will. This application was finally disposed of by A.R. Changez‑himself Custodian Evacuee Property, West Pakistan by his order dated 26‑6‑1964 in which he pointed out that‑-- "There are repeated orders of the Custodian in this case where by the property was held to be non‑evacuee. In the circumstances of the case, I do not think, Mst. Popribai was required to file an application under section 22 of the Pakistan (Administra tion of Evacuee Property) Act XII of 1957. Mr. Akbar Hussain, the then Custodian of Evacuee Property had granted the necessary declaration in favour of Jhamatmal. I have not been able to understand as to how the Settlement Authorities are ignoring the orders of the Custodian. It is never the intention of law to require a party to submit repeated applications for obtaining such a declaration. In my opinion, the Additional Custodian should not have initiated the proceedings on a Miscellaneous Application filed by Abdul Quddus Behari, who appears to have no interest in this property. I accordingly reject the application of Abdul Quddus Behari."

8. It was contended by Mr. Dingomal, the learned counsel appearing on behalf of the‑ applicants that the Custodian of Evacuee Property who has exclusive jurisdiction in this matter having finally decided that the applicant's properties are non evacuee a Civil Court cannot sit in judgment thereon. Secondly, the learned counsel argued that the Custodian of Evacuee Property is a Court and, therefore, no, complaint can be filed without first obtaining his sanction in respect of any offence committed in his Court vide P L D 1955 Sind 265.

9. Mr. A. R. Kazi appearing in this matter on behalf of the State supported the arguments of Mr. Dingomal. He further invited my attention to para. 2 of the complaint filed by Abdul Quddus Behari against the applicant in which he has stated that‑ "On the strength of the forged will she got mutated the large evacuee properties, buildings, etc., of her evacuee sons and thus she had prevented the law and justice by producing a forged will in the City Survey Office of Hyderabad." Mr. Kazi submitted that by virtue of the ruling of the Bombay High Court in A I R 1936 Bom. 221 the present complaint could only be filed by the City Survey Officer of Hyderabad and is not maintainable at the instance of the present complainant.

10. I am in agreement with the contentions raised before me by both the learned counsel appearing on behalf of the applicant as well as the State. Having perused the papers in this case it is plain to me that this complaint at the instance of a private individual is incompetent and not maintainable in law. The complainant‑ having himself stated in his complaint that a fraud has been practiced by the applicant upon the City Survey Office of t Hyderabad in getting the properties in question mutated on to her name, it is obviously for that office to proceed against heron the basis of such an allegation. Such a complaint cannot lie at the hands of a private complaint such as Abdul Quddus Behari is. Besides, I observe from the papers on the record before me that there are repeated orders of the Custodian in this case whereby the property of the applicant has been held to be non‑evacuee. I am, therefore, satisfied that the complaint in this case is not only maintainable but is also an abuse of the process of the Court. I, therefore, quash this complaint and the proceedings based thereon and now pending in the Court of the A. D. M., Hyderabad. K.B.A. Proceedings quashed.