A case under section 420/468/471, P.P.C. Has been registered against Muhammad Ashraf, Mst. Naz Parwara and Mirza Attaur Rehman at Police Station East Cantt, Tehsil and District Peshawar, vide F. I.
R. No. 295 of the same police station. After investigation, the case was challaned to the Court having jurisdiction in the matter.
2. While the case was pending in the criminal Court, Mirza Attaur Rehman applied to this Court under section 561-A, Cr. P. C. For the quashment of the proceedings pending against him in the Criminal Court. This Court, by order, dated 15th December, 1981, accepting the petition made by Mirza Attaur Rehman, directed quashment of the proceedings pending against him.
3. The other two accused, namely, Mst. Naz Parwara and Muhammad Ashraf have brought this petition under section 561-A, Cr. P. C. For quashment of the proceedings started in the same case, against them by the Criminal Court. The main grounds taken up in the petition are that the learned Magistrate has no jurisdiction to take cognizance of the case as the offences mentioned in the challan are the same which were specified in section 27 of the Displaced Persons (Com-- pensation and Rehabilitation) Act, 1958 (since repealed) (hereinafter referred to as the said Act) and under section 28 of the Said Act, the Courts could not take cognizance of the case save upon a complaint in writing made by an officer appointed under the said Act ; that since no such complaint has been made by the Officer appointed under the said Act, the cognizance taken by the Court is illegal ; that the transfer of the house mentioned in the first information report finally took place in the year 1963 which became final and could not be challenged under section 25 of the said Act, which in that regard excluded the jurisdiction of all other Courts and tribunals : and that the right accrued under the, repealed law subsisted even after the repeal of the said Act and on that basis the petitioners cannot be prosecuted for any thing which was an offence under the said Act.
4. Mr. Abdur Rehman Khan, Advocate appeared on behalf of the petitioners and Sahibzada Akhtar Munir, Assistant Advocate-General appeared on behalf of the State. Both of them addressed lengthy arguments. The record of the case was perused with the help of the learned counsel for the parties.
5. The learned counsel for the petitioners while inviting my attention to section 22 of the said Act argued that after surrender by Abdul Hamid of his rights in respect of the house in question in favour of Mst. Naz Parwara, petitioner No. 1, she became entitled to the transfer of the said house in her favour under the said Act and the Schemes made thereunder. For that reason the then Deputy Settlement Commissioner had, on 25th October, 1963, written order on the reverse of the P. T. O.
Issued in the name of Abdul Hamid that the amended P. T. O. Be issued in favour of Mst. Naz Parwara, which order, according to the learned counsel, was complied with He further argued that one Mst. Mustafa Jan, claiming herself to be the widow of Abdul Hamid, had submitted an application to the Deputy Settlement Commissioner that since she was one of the legal heirs of Abdul Hamid, entry of her name be made in the papers in respect of the disputed house. That application was opposed by Mst. Naz Parwara and ultimately it was dismissed on 14th April, 1973 by the Deputy Settlement Commissioner, Peshawar, who held that since the disputed house already stood transferred in favour of surrenderee (Mst. Naz Parwara), the question of declaration of the share of applicant Mst. Mustafa Jan did not arise. He further argued that order of the Deputy Settlement Commissioner was not challenged before the forums above and for that reason the said order attained finality under section 22 referred to above.
6. The next argument of the learned counsel for the petitioners was that any action taken by the authority in exercise of powers con--ferred on it by or under the said Act was immune from challenge under section 25 of the said Act, and by reading the provisions of section 22 and section 25 of the said Act together, one cannot escape the conclusion that the decisions made b the settlement authorities in respect of the transfer of the disputed house in favour of Mst. Naz Parwara could not be challenged before any authority, forum or Court, having already attained finality.
7. He then argued that the offence in respect of which the crimi--nal Court has now initiated proceedings was also an offence under section of the said Act. He contended that since in respect of an offence punishable under the said Act cognizance of the offence could not be taken by the Court, except upon a complaint in writing made by an Officer appointed under the said Act, as provided in section 28 of the said Act, the same protection, being vested right acquired under the repealed law, would even now remain available to the petitioners, and since no complaint is forthcoming on the record, the trial Court cannot proceed in the matter. The learned counsel supported his arguments by citing PLD 1978 Quetta 185 and the decision of this Court in Criminal Miscellaneous No. 370/81, decided on 15th December, 1981.
8. The learned Assistant Advocate-General argued that the offences for which the petitioners are now being tried are under different sections of law and are different from what was made offence under section 27 of the said Act and for that reason the protection which was available under section 28 of the said Act would not be available to th0 petitioners.
9. I have considered the arguments of the learned counsel for the parties in the light of the material available on the record and I am of the view that the contentions raised by the learned counsel for the petitioners have force. It appeal's from the record that the settlement authorities have considered the disputed house as transferred in favour of Mst. Naz Parwara petitioner. Even a PTD, bearing No. 305/292, dated 18th December, 1976, has been issued in her favour in the year 1976, which appears at page 112-113 of the relevant settlement file. The effort made in the year 1973 by Mst. Mustafa Jan, through her attorney; to dislodge Mst. Naz Parwara had failed when her applica-- tion was dismissed by the Deputy Settlement Commissioner on 14th April, 1973. That order was not challenged by her before higher forums and was thus allowed to become final. The offence now being tried by the Criminal Court in the impugned proceedings is essentially the same which was also an offence under section 27 of the said Act. Since respecting that offence section 28 of the said Act applied with all force before its repeal, the protection available under that section would continue to remain to the petitioners even after the repeal of the said Act, being a right having become vested in the petitioners under section 6 of the General Clauses Act and the repealing Act containing no provi--sion to the effect that the protection or the right available to any person under the said Act, shall stand extinguished after the repeal of the said Act. The same view was taken in the Quetta case, reported as P.1: D 1978 Quetta 185, and the learned Chief Justice of this Court in Criminal Misc. Petition referred to above also took the same view and quashed the proceedings against one of the three persons who were made accused in the impugned proceedings.
10. The net result of the discussion above is that there being no complaint in writing filed in this case by the competent Settlement Authority, the Criminal Court in which the impugned proceedings are pending cannot proceed in the matter. The proceedings are, therefore, hereby quashed.