This is a revision petition filed by one Muhammad Imtiaz Hussain in which the order of learned Additional Sessions Judge, Lahore dated 09.07.2004 has been assailed. On the first date of hearing i,e, 15.10.2004, the Hon'ble Judge of this Court while directing issuance of Notices to Respondents No, 1 and 2 observed that this revision petition was barred by 41 days.
2. Brief facts of the case, relevant for the disposal of this revision are, that the petitioner had filed a private complaint under Section 17 of the Offences against Property (Enforcement of Hudood)
Ordinance VI of 1979 read with Sections 342, 452, 148, 149, 392 nd 506 of the Pakistan Penal Code against Respondents No, 2 to 6.
3. On 19.03.2002 after the statement of the complainant was recorded by the trial Court the case was entusted to the Judicial Magistrate for conducting inquiry under Section 202 of the Code of Criminal Procedure. After inquiry a report was submitted by the learned Judicial Magistrate on 04.04.2002 to the learned trial Court. The learned trial Court on 17.04.2002 after perusing the repo issued process to the accused to face trial. This order was challeng d in the High Court through Criminal Revision No, 500/2002 and was decided by Mr. Justice Mian Muhammad Jahangir a single learned Judge of the Lahore High Court, Multan Bench Multan on 17.01.2003 after hearing both the parties. The said revision petition was accepted and the case was remanded with a direction that since the impugned order dated 17.04.2002, was being set aside, the trial Court should send the complaint to the Judicial Magistrate concerned for a fresh report in the light of the observations made in the main judgment which were to the effect that "whenever a private complaint is filed against the public servant, the learned Ilaqa Magistrate/Judicial Magistrate shall call for report, comment or written reply from the public servant concerned or shall adopt any other mode of inquiry or investigation which is suitable and to avoid miscarriage of justice, but at the same moment by eliminating the delaying tactics."
4. As a consequence of directions of the Lahore High Court, the trial Court again referred the matter to Judicial Magistrate for de-novo inquiry and report. A second report under Section 202 of the Code of Criminal Procedure was, therefore, submitted by the Judicial Magistrate, Lahore Cantt after summoning both the parties wherein the Lamed Inquiring Magistrate observed that the complaint was false and there was no material available on the record to justify summoning of the accused persons. The learned trial Court agreed with the report and the complaint was dismissed on 09.07.2004.
5. This order of dismissal of the complaint was challenged by the petitioner in the Lahore High Court but the case was returned for being filed in the Federal Shariat Court. It was then that a revision was filed in the Federal Shariat Court on 13.10.2004 and it was registered as Criminal Revision No, 115/L/2004.
6. This case came up before this Court on 15.10.2004 when a single learned Judge pointed out that the revision petition was barred by 41 days. Subsequently on 29.03.2005 the learned Counsel for the petitioner sought time to place on record certain documents. Though this prayer for filing additional documents was resisted by learned Counsel for the respondents yet he was allowed to place on record the necessary documents. It appears no documents were filed in this case.
7. On 08.11.2005 when the case was again taken up for hearing the learned Counsel, on behalf of the petitioner relying upon the case of `Muhammad Saleem Vs. Zafar Warriach and 7 others' reported as 2005 P.Cr.L.J 261 submitted that under Section 202 of the Criminal Procedure the accused/respondents could not have been associated with the proceedings of the inquiry in which they were arrayed as accused. The petition was thereafter admitted for regular hearing.
8. Shaikh Sajjad Mehmood, Advocate for petitioner appears on behalf of the petitioner and Respondents No, 2 to 6 are represented by Ch. Muhammad Zahoor Nasir, Advocate. The State is also represented by Syed Amanat Ali Bukhari, D.P.G. I have perused the record and also heard the arguments of the parties.
9. Learned Counsel for the petitioner has raised following points:--
(i) That the judgment of the learned Single Judge, Lahore High Court, Multan Bench, dated 17.01.2003 itself was void. Consequently the impugned order, arising out of a void judgment is itself void and consequently the question of limitation does not arise.
(ii) That under Section 202 of the Code of Criminal Procedure only a tentative assessment has to be made and the Court is not obliged to seek the explanation of the accused persons. In this view of the matter, the learned Counsel further submitted that since the impugned order is without jurisdiction in as much as it violates the provisions of Section 202 of the Code of Criminal Procedure, therefore, this order was passed without jurisdiction,'
10. Learned Counsel for the respondents has very vehemently stressed the question of limitation. He also urged that the impugned order was within jurisdiction and the Inquiring Magistrate also acted within the jurisdiction and both the orders are in accordance with the spirit of the direction given by the Hon'ble Single Judge of the Lahore `High Court while disposing of Criminal Revision No, 500/2002. -He also submitted that the judgment of learned Single Judge Lahore High Court, Multan Bench, was within jurisdiction and hence legally effective.
11. I have perused the application moved under Section 5 of the Limitation Act along with the grounds of revision and I have also gone through the judgment of the. Hon'ble Single Judge of the Lahore High Court delivered in Criminal Revision No, 500/2002 as well as the impugned order.
Neither has any date of filing of Criminal Revision been mentioned nor the date of filing of the application Criminal Miscellaneous No, 502/L/2004 under Section 5 of the Limitation Act, has been indicated in the application. The application for con donation of delay does not indicate as to (i) when an application to obtain certified copy of the impugned order was moved? (ii) when the certified copy of the impugned order was made available to the petitioner? (iii) when was the Criminal Revision filed in the Lahore High Court, Lahore and on which date the said Revision was returned? (iv) when the petitioner moved the revision petition in this Court? and (v) there is also no affidavit which testifies the reason for con donation of delay. Even the period between the return of revision petition by the registry of Lahore High Court and filing of revision in the Federal Shariat Court has neither been mentioned nor sufficient cause shown for the delay. Attention of learned Counsel for the petitioner was drawn to these facts and he conceded that no explanation has been given but he insisted that no explanation was called for as all the orders were void.
12. The office record of this Court however indicates that the present revision petition was filed on 13th October, 2004 which fact shows that there was a delay of 41 days in filing this revision petition.
It is, therefore, apparent that no sufficient cause, as prescribed by Section 5 of the Limitation Act, 1908 for not preferring the revision, has at all been shown by the petitioner. Proceedings before a wrong forum do not entitle a person to claim condonation of delay. It is not deemed to be a sufficient cause as contemplated by Limitation Act. Sufficient cause means circumstances beyond the control of a party. Reference the case of Mst. Khadija Begum Versus Mst. Yasmeen and 4 others reported as PLD 2001 Supreme Court 355 and Pakistan International Airlines Corporation Versus Captain M.S.K. Lodhi reported as 2002 S.C.M.R. 1004 (1008). The learned Counsel for the petitioner has not referred to any disability on the part of the petitioner either which could be urged on his behalf as a valid consideration for condonation of delay.
13. After the judicial determination of a dispute a valuable right accrues to the other party particularly when an appeal, revision or review is not filed within the time prescribed by law. The judgment of the learned Single Judge of the Lahore High Court was not assailed. It attained finality.
The order for dismissal of the complaint passed by a Court of competent jurisdiction was not challenged within the available time. Law requires that delay of each and every day must be explained. In the present case, as noted above, there is neither any mention of the various steps nor any reason whatsoever advanced in support of condonation and filing of revision beyond time.
14. In the instant case the accused were summoned by the learned Additional Sessions Judge, Lahore after recording cursory evidence of the complainant which order was assailed before the Lahore High Court, Lahore and the case was then remanded with the direction that the Judicial Magistrate shall submit fresh report in the light of the observations made in the remand order and the learned Judge of the Lahore High Court further directed that a written reply, report and comments from the accused or the head of the department be also obtained. In this view of the matter, the learned trial Court only complied with the directions given by the Hon'ble Judge of the Lahore High Court. It was only then that a detailed order was passed after considering the facts of the case. There was no option but to comply with the directions of the highest judicial authority of the Province. Article 201 mandates that the decision of the High Court is binding on all Courts subordinate to it. 15.Learned Counsel for the petitioner relied upon the case of `Abdul Wahab Khan Vs. Muhammad Nawaz and 7 others' reported as 2000 S.C.M.R. 1904 to contend that the violation of Section 202 of the Code of Criminal Procedure makes the order void. I have gone through this judgment wherein no such principle has been enunciated.
16. The learned Counsel next relied upon the case of "Anwar An Khan and others Vs. Wahid Bux and others" reported as 1991 S.C.M.R. 1608 in which it was held that Section 202 Code of Criminal Procedure does not contemplate that a notice be issued to accused persons before issuing process but at the same time, if Court holding such an inquiry issues such a notice to the accused person before issuing process, it would not vitiate the inquiry.
17. Learned Counsel for the petitioner has not been able to lay hand upon an authority to the effect that associating an accused in an enquiry under Section 202 of the Code of Criminal Procedure as a consequence of the direction of the High Court would render the order of learned Judicial Magistrate and the order of learned Additional Sessions Judge as void.
18. The learned Counsel has also relied upon the case of 'Muhammad Saleem Vs. Zafar Waraich & 7 others' reported as 2005 P.Cr.L.J 261 decided by a Single learned Judge of the Federal Shariat Court.
This authority is to the effect that it is illegal on the part of the Additional Sessions Judge to call upon the accused during the course of the inquiry under Section 202 of the Code of Criminal Procedure to join proceeding so as to provide them an opportunity to raise objection qua the complaint in which they were arrayed as accused. But the position in this case is that the learned Judge of the Lahore High Court had issued specific direction to the trial Court that fresh inquiry be conducted on the specified line. It was not possible for the Inquiring Magistrate to ignore the orders passed by the learned Judge of the Lahore High Court and refuse association of accused in the enquiry. The order passed by a Judge of the High Court unless challenged successfully in the Apex Court is binding on all the subordinate authorities according to Article 201 of the Constitution.
19. The argument that the judgment of the learned Single Judge of the Lahore High Court passed in Revisional Jurisdiction is void cannot be entertained for the reason that I am nobody to sit on judgment passed by a learned Judge of the High Court passed in Revisional Jurisdiction conferred by law. The judgment was not only well reasoned but it was passed after hearing the present petitioner. This judgment G was never challenged in the Supreme Court of Pakistan meaning thereby that the order attained finality. It is, therefore, not fair to say, after a lapse of five years, that not only the judgment delivered in Criminal Revision No, 500/2002 by the learned Single Bench was void but all the subsequent orders are also void.
20. According to Black's Law Dictionary "Judgment is a "void Judgment" if the Court that rendered the judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process." Learned Counsel for the petitioner has not been able to show that the learned Single Judge had no jurisdiction to entertain and decide criminal revision.
21. Another important aspect of the void judgment is that void order is not always liable to be struck down if the petitioner is either estopped by his conduct or is guilty of laches. Reference Kh. Abdul Qayyum Vs. Muhammad Afzal Khan and 2 others reported as 1981 C.L.C. 1163 as well as the case of Khiali Khan Vs. Haji Nazir, and 4 others reported as PLD 1997 Supreme Court 304 and many more authorities on the proposition.
22. In this view of the matter the Revision Petition must fail. The impugned order dated 09.07.2004 does not call for interference firstly because it was assailed beyond time without disclosing sufficient grounds for condonation of delay and secondly for the reason that the impugned order was passed in exercise of the jurisdiction vesting in the Court under the law. The order cannot, for the sake of argument, be termed as void to advance the plea that limitation does not run against void order. Criminal Revision No, 115/L/2004 is, therefore, dismissed.