' SADIQ HUSSAIN BRATTI, J.---The instant Criminal Revision Application is filed against the order dated 1-12-2004 passed by learned Additional District Judge, Kotri, during the proceedings of Execution Application No,2 of 2004 filed by Khuda Bux son of Muhammad Rahim and others (decree holders) V/S (i) Land Acquisition Collector and D.D.O (Revenue) Kotri, (ii) Military Estate Officer, Hyderabad and (iii) Director General Military Lands and Cantts., Ministry of Defence, Pakistan, Sectt-II, Rawalpindi for execution of decree dated 3-3-2004, passed by the honourable Supreme Court of Pakistan.
2. The said Execution Application was admitted vide order dated 14-5-2004 subject to legal objections if any and verification of the judgment. By same order the notices were also issued to judgment debtors.
3. The present applicant (Faqirullah s/o Khan Muhammad) Military Estate Officer, Hyderabad, as one of the judgment debtor filed objections Under Order XXI, Rule 46, C.P.C. On 11-10-2004 by way of counter affidavit submitted as under before the Executing Court:-- "That I say that the application filed praying to freeze the account of Federal Consolidated Fund Account Central Account No,1 non food is not maintainable as the Federal Government is not the party in the case."
4. Hence, Abdul Shakoor, attorney of D.H. Filed this application under section 195(i)(b)(c) Cr.P.C.
Read with section 476, Cr.P.C. Praying therein that the applicant be summarily tried and punished according to law.
5. Learned Additional District Judge, Kotri after hearing the learned counsel for the parties and going through the record passed an order dated 1-12-2004 which is impugned by the applicant Raja Faqirullah, M.E.O. Hyderabad (respondent No,2 in Execution application).
6. Heard learned counsel for the applicant and examined carefully the case-law submitted by him as well as the impugned order.
7. The main contention of learned advocate for Decree Holder is that the applicant/J.D. No,2 who while filing the objections through his counter affidavit as discussed above, that the order is not maintainable since Federal Government is not impleaded as party.
8. The learned Additional District Judge passed the adverse order against the applicant/J.D. No,2 as under:- "Under the circumstances since the accused/J.D. No,2 committed an offence punishable under section 193 P.P.C. The cognizance of such offence is taken against him under section 195 (i)(b)
(c), Cr.P.C. Read with section 476 Cr.P.C. Let the complaint in writing be filed before Civil Judge and Judicial Magistrate, Kotri." oblivious of the fact that such order shall definitely prejudice the case of
9. In my opinion this is very hasty order. Learned Judge is applicant/J.D. No,2 and shall influence the Magistrate.
10. The learned Additional District Judge has not considered the fact that beside the counter affidavit of J.D.No,2, Decree Holder Khuda Bux submitted an application under Order I, Rule 10(2) read with Order VI, Rule 17 of C.P.C. In which he has prayed that J.Ds Nos. 2 and 3 in the present title be deleted and be substituted by Federation of Pakistan, Ministry of Defence through M.E.O.
Hyderabad. In support Abdul Shakoor, attorney of Decree Holders has also sworn such affidavit.
11. It is thus evident from the above application as well as affidavit that applicant/J.D. No,2 has merely filed the objections by way of counter affidavit in which he has brought the real fact before the Court and has not concealed the true facts and has not given a false statement before the Court.
12. Learned Additional District Judge seems to be influenced by the fact that in original reference under section 18 of Land Acquisition Act though the Federal Government was not party but when the reference was decided and judgment of his Court was challenged by the Province of Sindh through Collector District Dadu and Federation of Pakistan dated 20-2-1997 through M.E.O.
Hyderabad. The same is written in Para No,3 of the judgment of Supreme Court dated 30-3-2004. In above facts and circumstances, the counter affidavit of J.D. No,2 is proved to be false.
13. Learned A.D.J. Has passed the impugned order without waiting for the verification of the judgment and record, or calling the J.D. No,2 who had submitted objections by way of affidavit and would have been subjected to cross examination to illicit truth. My views are fortified by case of Muhammad Asif, Advocate v. Mehboob Ali Khan Sherwani reported in 1999 PCr.LJ 436 which reads as under:-- "Deponent of affidavit did not make himself available for cross-examination. Filing of affidavit alone would not constitute any offence. S. 193---Punishment for false evidence. Affidavit when not to be relied upon. Person against whom an affidavit is produced is entitled to have him in the witness-box and cross-examine him. Where the deponent is not produced for cross- examination, the affidavit loses all its force as a probative piece of evidence and cannot be relied upon."
14. The principle laid down in the above case-law is as under:- "The deponent of affidavit was not produced for cross-examination. Affidavit lost its force as probative piece of evidence could not be relied upon."
15. I am not unmindful of the fact that Court while deciding execution application in land acquisition matters, obviously of civil nature and in such cases a criminal revision lies.
16. Admittedly, the impugned order passed by A.D.J. Is on application submitted under section 195(i)(b)(c), Cr.P.C. Read with section 476, Cr.P.C. As per order J.D. No,2 has committed an offence punishable under section 193, P.P.C. The cognizance of it is taken under section 195(i)(b)(c), Cr.P.C.
Read with section 476, Cr.P.C. Complaint be filed in the Court of Civil Judge and F.C.M. Kotri. Any improper, unjustified and unwarranted by law, such order can be challenged by way of Criminal Revision.
17. Lastly, the learned counsel has submitted the order passed by learned Additional District Judge, Kotri on 21-3-2005 on statement filed by the Decree Holder in execution application No,2 of 2004.
Wherein the Decree Holder withdraw the same and the order passed by A.D.J. Was as under: "In view of the statement of learned counsel for the Decree Holder, the execution application is dismissed as withdrawn."
18. In view of the above order of the A.D.J, it appears that the execution application is no more in the field.
19. For the foregoing reasons, this Criminal Revision Application filed by applicant Raja Faqeerullah is allowed/accepted and the order dated 1-12-2004 passed by learned A.D.J. Kotri is set aside.