' ANWAR ZAHEER JAMALI, C.J.--- On receipt of complaint dated 28-12-2006 by the M.I.T., addressed to the Honourable Chief Justice, it was marked for consideration to the Honourable Senior Pusine Judge; in the first instance comments were called from the trial Court, whereafter R&Ps of S.C.
No,543 of 2005 were called and ultimately being dissatisfied with the comments, and upon perusal of the record and proceedings of the said sessions case, these suo motu proceedings have been initiated in the matter in terms of the order, dated 7-5-2008, to examine the legality and propriety of the impugned order dated 7-8-2006 passed by the Court of III-Additional Sessions Judge, Karachi South (Ms. Farzana Anwar Shah), whereby, while granting an application under section 265-K, Cr.P.C. Moved by accused Saleemullah Siddiqui, he and other accused involved in the case were acquitted in Crime No,89 of 2003 Police Station Gizri.
2. Mr. Niazy A. Khaliq, Advocate for complainant has narrated in detail the relevant facts of the case, which formed basis for lodging of F.I.R. No,89 of 2003 Police Station Gizri, and after investigation, submission of challan before the trial Court on 15-6-2005. His submission is that trial Court totally misdirected itself in attributing delay in the proceedings of the sessions case to the prosecution or the complainant as it was the duty of the Court to have framed charge in the crime, which was not framed till passing of the impugned order. He also contended that even if the conclusion recorded by the trial Court regarding non-cognizable nature of offences under sections 467, 468 and 471, P.P.C. And non-compliance of the requirement of section 155(2), Cr.P.C. Is accepted, though based on conjectures and surmises, the other offence for which the accused were charged under S.420, P.P.C. Was cognizable, therefore, due to purported violation of section 155(2), Cr.P.C. The accused of the crime could not have been acquitted. In order to show the nature of the offence, for which the accused have been charged in the crime, learned counsel also made reference to a bunch of documents placed on record by the complainant on notice of this suo motu revision application, particularly he made reference to the report of Handwriting Expert to show that it was proved from such report that the thumb-impressions on the document were fabricated and managed and the same were not of the complainant's mother. The trial Court, however, did not afford any opportunity to the prosecution to prove its case against the accused persons. He concluded his submission by saying that there was no material available before the trig Court to hold that no permission, as contemplated under section 155(2), Cr.P.C. Was obtained from the Magistrate, as regards the investigation of crime of non-cognizable nature as provided under sections 467, 468 and 471, P . P . C .
3. Mr. Talmiz S. Burney, Advocate for respondent No,3 while arguing this case in the first instance challenged the maintainability of this suo motu revision proceedings by making reference to the provisions of sections 417(2-A) and 439, Cr.P.C., which read as under:--- "417. Appeal in case of acquittal.--- (1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court."
(2). .......................................................................................
(2-A) A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may, within thirty days, file an appeal against such order.
(2). .........................................................
(3). .........................................................
(4). .........................................................
439. High Court's powers of revision.--- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2).
(3).
(4).
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6).
4. He contended that once the remedy available to the prosecution and complainant under sections 417 and "417(2-A), Cr.P.C. Were not availed by them within the stipulated period, no proceedings under section 439, Cr.P.C. Could be maintained to overcome such negligence from their side as subsection (5) to section 439 is a complete bar for this purpose. In support of his submissions, learned' counsel placed reliance upon the two cases reported as Karl John Joseph and another v. The State PLD 2005 Kar. 4 and Muhammad Sharif and others v. The State 2005 M LD 1333. In the first case, it was held that if the trial Court had acquitted the accused from the charge under section 15 of the CNS Act, 1997, such findings of acquittal cannot be converted into conviction in the appeal or even under revisional powers of the Court as there was specific bar in section 439(4)(a), Cr.P.C. In the other case, examining the question of maintainability of appeal under section 417(2-A), Cr.P.C. Vis-a-vis Articles 157 and 29 of the Limitation Act, it was held that when the period of limitation was prescribed by special statute, benefit of Article 5 of the Limitation Act for condonation of delay in filing of appeal cannot be extended by the Court in such cases.
5. Mr. Manohar Lal, Advocate for respondent No,1 adopted the arguments of Mr. Burney with the addition that the genuineness or otherwise of the disputed documents with reference to which offence under section 420, P.P.C. Has been attributed to the accused persons is to be decided in the two pending civil suits between the parties. Therefore, continuance of criminal proceedings against the accused on the same charge was an abuse of process of law. Thus, the impugned order passed on application under section 265-K, Cr.P.C. Is fully justified.
6. Mr. Miran Muhammad Shah learned Additional Advocate-General for the State strongly supported the arguments of Mr. Niazy, learned counsel for complainant Mst. Fakhrunnisa. He contended that the offences committed by the accused persons are independent of their civil liabilities, which are subject-matter of the two civil suits. Therefore, the trial 'Court should have framed charge in the criminal case and afford proper opportunity to the prosecution to lead evidence in the matter, instead of exercising its jurisdiction under section 265-K, Cr.P.C. At such a premature stage. He also contended that delay in the proceedings of the sessions case cannot be attributed to the prosecution as no charge was framed in the case till disposal of application under section 265-K, Cr.P.C. Criticizing the observations of the learned trial Court as regards non- compliance of section 155(2), Cr.P.C. Mr. Shah also argued that there was no material available before the trial Court to draw such a conclusion as the prosecution was not afforded opportunity to show whether such permission for investigation of crime under sections 467, 468 and 471, P.P.C.
Being non-cognizable, was obtained from the concerned Magistrate or not. He concluded his submission with the request that the impugned order dated 7-8-2006 may be set aside and the trial Court may be directed to proceed with Sessions Case No,543 of 2005 arising out of crime No,89 of 2003 Police Station Gizri, in accordance with law.
7. Mr. Niazy A. Khaliq in his reply submissions, contended that the bar of section 439(5), Cr.P.C. Is applicable to the present proceedings for the simple reason that these revision proceedings have not been initiated by the complainant, but the High Court after acquiring knowledge of illegality of the impugned order and being dissatisfied upon the perusal of R&Ps of S.C. No,543 of 2005, has initiated suo motu proceedings for which neither bar of section 417, Cr.P.C. Nor bar of section 439(5), Cr.P.C. Is attracted.
8. After careful consideration of the submissions made by learned counsel; perusal of relevant provisions of law and the material placed on record, I am inclined to hold that the instant proceedings initiated by this Court, on acquiring knowledge about the illegality of the impugned order, being suo motu, are neither hit by the provisions of section 417 or by section 439(5), Cr.P.C.
But the same are covered by subsection (5) to section 439, Cr.P.C. As reproduced above.
9. As to the merits of the case, after perusal of the impugned order, I am constrained to observe that while passing such order, the trial Court not only acted in haste and hurry but also in a manner which smacks some foul play on its part. The challan in Crime No,89 of 2003 of Police Station Gizri was submitted before the trial Court on 15-6-2005 i.e. More than a year earlier to the passing of impugned order, but during such period, as revealed from the Court diaries, case was adjourned on flimsy grounds. However, on filing of application under section 265-K, Cr.P.C. Dated 3-8-2006, the trial Court all of sudden became active/efficient and proceeded to dispose of the said application within a short span of five days, without even affording proper opportunity to the prosecution or the complainant to contest such application. Perusal of R&Ps of the sessions case further reveals that no delay whatsoever was caused in the proceeding of the said case by the prosecution or the complainant, who were all along keen to proceed with the case, but the trial Court neglected even to frame charge in the matter. Further, there was no material available before the trial Court at the stage of passing of impugned order to show that the requisite permission as contemplated under section 155(2), Cr.P.C. For investigation of non-cognizable offences under sections 468 and 471, P.P.C. Was not obtained as this position could have been sorted out when in due course the prosecution has an opportunity to lead evidence in case. It is pertinent to mention here that two judgments PLD 2005 Kar. 528 and PLD 2005 Kar. 528 referred by the Presiding Officer of the trial Court to justify extension of benefit of purported non-compliance of section 155(2), Cr.P.C. To the accused persons by way of passing of impugned order, were misinterpreted and misapplied inasmuch as in none of these two cases it was held that due to such defect in the investigation proceedings, the whole trial of the case will be vitiated. In the case, titled Mukhtiar Ali and 3 others v. The State and another PLD 2005 Kar. 528, examining this aspect of the matter, the learned single Judge has observed that in case of violation of provisions of section 155(2), Cr.P.C. Action is to be taken against the concerned Police Officer, who may be liable for proseoution under section 166, P.P.C. But the proceedings initiated on such investigation will not be vitiated, unless it could be shown that some prejudice was caused to the accused persons due to said procedural lapse. In the other case of Mukthiar Ali and others v. The State and another PLD 2005 Kar. 528, the same learned Single Judge has further clarified this position by making observation that if the investigation is conducted by officer, who was not authorized by law or permitted by the Magistrate then it would not vitiate the trial, if no .Prejudice is caused to the accused persons. However, such Police Officer will be exposing himself for prosecution under section 166 or 220, P.P.C. As the case may be. Thus, it is obvious that the learned Presiding Officer of the trial Court did not apply correct law based on the two judgments, to favour the accused persons. This view of the matter is further fortified from the judgment of the Honourable Supreme Court of Pakistan in the case of Altaf Hussain v. Abdul Samad and 3 others 2000 SCM R 1945 also see Abdul Rehman v. Deputy Superintendent of Police City Circle Sargodha 2007 YLR 769, wherein, while discussing the fact of non-compliance of section 155(2), Cr.P.C. Relating to the investigation of non-cognizable offence, after detailed discussion about the relevant provision of law as well as case-law on the subject, the Court had observed as under:--- "A resume of the aforesaid facts and case-law leads to the conclusion that generally speaking Police Officers are not competent to investigate an offence which is non-cognizable and requires permission from a competent Magistrate before the commencement of investigation. However, if through bona fide error or misconception of facts and law a Police Officer has undertaken investigation of a crime in which he is not authorized to arrest an accused without a warrant from a Magistrate and a case is taken to a Court competent to try it in terms of section 190(1)(a) and (b), Cr.P.C. Cognizance taken may not be altogether bad in law and vitiated unless the trial has caused serious prejudice to the accused resulting in miscarriage of justice. It may be fully understood that there is no blanket for the acts committed dishonestly or mala fide by Police Officers who inherently are otherwise not empowered to submit reports for trial in non-cognizable offences and Courts should not normally encourage the acts of police agencies without proper scrutiny. Yet in appropriate cases, if a Court otherwise competent has taken cognizance of an offence and proceeded with the trial of the accused, the same may not be vitiated in the absence of any miscarriage of justice or grave prejudice to the accused. Indeed, on the one hand Police Officers are duty bound to ensure the rule of law whereas, on the other hand Courts can exercise jurisdiction only subject to law and the assumption of jurisdiction which otherwise is barred can hardly be justified on the plea of bona fide cognizance of a case or lack of prejudice to the accused."
10. Moreover, the observations of the trial Court in the impugned order that though the offence under section 420, P.P.C. Is cognizable in nature but still in the facts and circumstances of the case, due to noncompliance of section 155(2), Cr.P.C. It cannot be proceeded with, are also highly capricious and conjectural, as crime under section 420, P.P.C. For which the accused were charged, was independent in nature, and could have entailed punishment to the accused if it was proved during the trial of the sessions case. It seems that the trial Court while passing the impugned order has obliged accused persons in a very indecent and hasty manner, which is evident from the illogical reasoning assigned in the impugned order.
' Foregoing are the reasons for the short order, dated 12th January, 2009.
' Copy of this order be retained in the personal file of Ms. Farzana Anwar Shah, the concerned Judicial Officer who had passed the impugned order.
R&Ps. Of Sessions Case No,543 of 2005 shall immediately be sent to the trial Court for further proceedings in accordance with law.