1. ' SARDAR MUHAMMAD ASHRAF KHAN, J.-Briefly stated, the facts of the case are that land comprising Survey Nos, 423, 434, 436, 857, 430, 435, 424, 446, 483 and 439-min, measuring 60 Kanals, situate in village Kathiria, Tehsil Rawalakot, District Pooncb, belonging to the appellants, was compulsorily acquired by the Government under the Land Acquisition Act for the defence purpose, through an award dated 12-12-1981 made by the Revenue Assistant, Rawalakot in his capacity as Collector Land Acquisition. Being dissatisfied with the amount of compensation allowed to them in the said award, the appellants put in an objection application before the Collector, Land. Acquisition requiring him to make reference under section 18, of the said Act, to the District Judge for the determination of the compensation money, who accordingly referred the above matter for adjudication to the District Judge (reference Court), Poonch on 20-12-1981. The respondents resisted the above reference application by putting up written objections to it. The Court framed as many as 8 issues in the case in the light of the respective pleadings of the parties including the one pertaining to the question of jurisdiction of the said Court to hear the reference application which was numbered 7-A and reads as follows :- "Whether this Court has the jurisdiction to hear the case ?
2. ' The Court, after recording evidence produced by the parties, in support and rebuttal of the issues framed by it in the reference and hearing arguments of the learned counsel for the parties, decided the issue reproduced above, in negative and consequently dismissed the reference made by the Collector vide its judgment dated 31-1-1983, on the ground of want of its jurisdiction to entertain and hear the reference in respect of the award of the Collector made in this case, leaving the other issues undecided. The appellants have now approached this Court by way of present appeal against the aforesaid judgment and decree of the District Court, for the redress of their grievances arising therefrom.
3. ' We have heard the learned counsel for the parties and also perused the record of the case. Before proceeding to examine and give decision on the respective contentions of the learned counsel for the appellants raised by them at the bar, we deem it appropriate to state that the present appeal is incompetent against the order impugned therein, for the simple reason that under section 54 of the Land Acquisition Act, the right of appeal is restricted one which can only be availed of by an aggrieved person against an award, or any part thereof, of the Court and an appeal does not lie from any order of the reference Court which does not amount either to an award or part thereof, of the Court and since the order under appeal does not determine any amount of compensation of the land of the appellants compulsorily acquired by the Government and under it the reference made by the Collector, Land Acquisition has been dismissed by the Court on the ground of lack of its jurisdiction to hear the same, it is not an award within the meaning. Of term, 'award' as visualised in section 26 and other relevant sections Of the Land Acquisition Act. However, we treat this appeal as a petition for revision under section 151, C. P. C. And proceed to dispose it of as such.
4. ' Mr. M. S. Farooqi, one of the petitioners and counsel for the other petitioner, has made the following submissions in support of this petition.
(1) That the land under the Azad Jammu & Kashmir Acquisition of Land (Development and Housing Schemes) Ordinance, 1982 (hereinafter referred as Ordinance of 1982) can only be acquired for the development and housing schemes approved by the Government or its Official Development Agency but the land, subject of the reference, neither comes under definition of above schemes as given in the said Ordinance nor any such scheme in respect of it was approved by the Government or any Official Development Agency before its acquisition, with the result that the reference was not hit by the provisions of Ordinance of 1982 and, as such, the Court had the jurisdiction to hear and dispose it of under the provisions of the Land Acquisition Act. In support of his contention that the Notification published by the Government under the Land Acquisition Act for the purpose of acquiring land, does not amount to approval of the scheme under the provisions of the Ordinance of 1982, as is held by the Court, he has referred to the order of this Court dated 28-11-1981, made in a case entitled "Bashir Ahmad Farooqi v. Azad Government and others."
(2) That even assuming for the sake of argument that the Ordinance of 1982 was applicable to the reference, the same is unlawful and unenforceable because it had taken away the right of the petitioners vested in them under the law at the time of making the award by the Collector Land Acquisition in respect of the land in question, to approach the Land Acquisition Officer to refer the matter for the determination of the compensation money, to the Court. In support of his above contention, he has referred to a case reported as PLD 1982 SC (A J & K) 112.
(3) That the order under revision is vitiated on the ground of its having been made mala fide as the Judge of the Land Acquisition Court was personally biased and prejudiced against the petitioners.
5. To prove the above mala fide, he has contended that the Judge of the Court had decided the case in spite of the fact that the application for the transfer of the case from him to any other Court of competent jurisdiction had been lodged before the High Court and order of the said Court requisitioning the file of the case, was presented before him and that he had disposed of the reference application without deciding the other issues framed in the case which, according to the orders of his predecessor, were to be decided alongwith the issue pertaining to the jurisdiction of the Court to hear the reference application.
6. ' On the other hand, the learned counsel for the respondents has argued that the land required for the Army purposes, is included in the definition of the Development Schemes as given in the Ordinance of 1982 and as such, the Court below had rightly held the land acquired by the Government under the award which was the subject of reference before it, to be included in the development schemes. It is further contended that before the land in question was acquired by the Government, the Scheme pertaining to it was prepared and approved by the concerned Military Authorities which approval amounts to the approval of the Government and in the alternative; by its Official Development Agency in terms of the Ordinance of 1982 and, as such, is hit by the provisions of the said Ordinance debarring the District Judge to hear the reference against the award of the Collector Land Acquisition.
7. Before proceeding to discuss the above respective contentions of the learned counsel for the parties, it appears necessary to make it clear that in the reference application before the Court, the question of jurisdiction of the Court was not in any way involved as there is no provision in the Ordinance of 1982 whereunder the jurisdiction of the reference Court is barred to hear reference made by the Collector on the objections being taken to its award by the aggrieved party and pending before it under the Land Acquisition Act. Section 17 of the said Ordinance only lays down that any Notification issued, direction given and decision made or orders passed by the Government or by any competent authority under this Ordinance shall not be questionable in any Court of law which means that the orders made under the Ordinance of 1982, were barred to be taken to the Courts of law but, as is undisputed, the reference pending before the Court was not from any award or Order made under the Ordinance of 1982 and as such the jurisdiction of the reference Court was not at all barred. Here, the relevant provisions which might have been considered for application to the present case, are contained in section 16 of the Ordinance of 1982 under which the reference made from the award of the Collector Land Acquisition to the District Judge stood abated on the commencement of the said Ordinance -provided they fall within the for corners of the provisions of its aforesaid section. So the substantial question requiring determination in this case is as to whether or not the reference petition of the petitioners stood abated on the commencement of Ordinance of 1982, for the examination of which question, it appears appropriate to reproduce the relevant portion of the said section of the Ordinance of 1982 which reads as under :- "16. Abatement of suits and other proceedings.-(1) All references, suits, appeals and applications regarding any matter now within the jurisdiction of the Commissioner under the provisions of the Ordinance CXIII of 1979 pending in any Court under any law on the subject, immediately before the commencement of this Ordinance, shall abate forthwith except the Supreme of Azad Jammu & Kashmir."
8. After taking into consideration the provisions of law reproduced above, we find that the Court below had failed to approach the question to be decided in this case from the right angle, by not applying the correct law applicable to it and its above failure has resulted in its coming to an erroneous conclusion that it did not possess the jurisdiction to hear and dispose of the reference application of the petitioners which was pending decision before it before the promulgation of the Ordinance of 1982. The learned Judge of the Court has held that the reference under discussion being hit by the provisions of the said Ordinance, is not maintainable before him. Here, he has committed an error because, in or view, the reference did not at all fall within the ambit of the relevant provisions contained in section 16 of the Ordinance of 1982 and as such, it did not abate.
9. The learned District Judge is of the view that the purpose, namely, the army purpose, for which the land was acquired by the Government, was included in the definition of the `development schemes' as given in section 2(1)(b) of the Ordinance of 1982 and that its development scheme shall be treated to have been approved by the Government by issuance of Notification under section 5 of the Land Acquisition Act, bearing No,. RS/3020-24 dated 3-10-1981. Both the above findings are fallacious not warranted by the relevant law. In view of the provisions of section 16 reproduced above, it becomes abundantly clear that only those references, suits, appeals and applications regarding any matter within the jurisdiction of the Commissioner under the provisions of Ordinance No,. CXIII of 1979 (hereinafter referred as Ordinance of 1979), pending in any Court under any law except the Supreme Court of Azad Jammu & Kashmir, immediately before the commencement of the Ordinance of 1932, stood abated. Therefore, in coming to the conclusion as to whether or not the reference under discussion stood abated on the promulgation of Ordinance of 1982, we have to see as to whether the matter in reference fell within the jurisdiction of the Commissioner under the provisions of Ordinance of 1979 or not. If the answer is in positive, then, of course, the reference under discussion stood abated but not otherwise. After taking into account the definition of the 'Housing Scheme' as given in section 2(1)(f) of the Ordinance of 1979 and the provisions of section 3, rendering certain lands liable to acquisition under the said Ordinance, we are of the opinion that the matter in the reference application of the petitioners did not come within the jurisdiction of the Commissioner with the result that the said referent application did not abate on the commencement of the Ordinance of 1982. For the facility of reference, it appears appropriate to reproduce the relevant provisions defining the 'Housing Scheme: and section 3 of the Ordinance of 1979 which respectively run as under :- "2(1)(f ) 'Housing Scheme' means a scheme which provides for residential sites, houses or apartments including ancillary land used as such-
(i) building and other facilities for health, education, culture, transportation, communication and shopping ;
(ii) environmental improvements.; and
(iii) utility services, that is to say water supply, draiange, sewerage, sanitation, electricity and fuel.
10. "3. Liability to acquisition-Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other Law for the time being in force, all land within Azad Jammu & Kashmir shall be liable to acquisition at any time under the Ordinance for Development and Housing Schemes approved and notified by Government or Official Development Agency so empowered by the Government by notification in the Official Gazette."
11. As would appear from the bare reading of section 3 reproduced above, the land under it can only be acquired for the development and housing scheme approved and notified by the Government or Official Development Agency is empowered by the Government by Notification in the Official Gazette, which means that before the land can be acquired in terms of above provisions of law, the two pre-conditions must be satisfied, namely
(i) that the land required to be acquired by the Government should be for the development and housing schemes ; and
(ii) that such scheme should have a prior approval of the Government or Official Development Agency empowered by the Government to do so, behind it.
12. ' None of the above pre-conditions was satisfied before the land of the petitioners was compulsorily acquired by the Government. The Army purpose is not included in the definition of the 'Housing Scheme' as defined in the Ordinance of 1979. The learned Reference Judge has taken into consideration the definition of 'Development Scheme' as given in the Ordinance of 1982 which he, in view of the provisions of section 16 of the said Ordinance, could not do. In order to find out whether the matter in reference fell within the jurisdiction of the Commissioner, the definition of the 'Housing Scheme' has to be taken into account while deciding the question as to whether the particular land was acquired for the purposes of housing and development scheme as envisaged by section 3 of the Ordinance of 1979. Since the land in question did not form a part of any 'housing scheme' under the Ordinance of 197), the award in respect of it given by the Collector Land Acquisition was not appealable before the Commissioner but reference about it only could be made to the District Judge under section 18 of the Land Acquisition Act. This being the legal position, it cannot be said that the matter under reference fell within the exclusive jurisdiction of the Commissioner in the sense that the award of the Collector made in respect thereof was appealable to him only and, as such, the District Judge continued to enjoy the powers and authority to hear and dispose of the reference of the petitioners in accordance with law notwithstanding the commencement of the Ordinance of 1982. The learned District Judge has failed to take notice of the words 'Ordinance No,.
13. CLXIII of 1979' used in section 16 of the Ordinance of 1982 which fact has resulted in his coming to wrong conclusion that the land acquired for the army purposes is included in the definition of the 'development schemes'. He has read the definition of 'Development Schemes' as given in the said Ordinance which, of course, included the Army purposes within the purview of definition of "Development Schemes", whereas the definition of 'Housing Scheme' appearing in the Ordinance of 1)79 is only relevant for the purposes of determination as to whether or not the matter in reference under discussion was within the jurisdiction of the Commissioner. As stated earlier, in the Ordinance of 1979 the 'Development Scheme' is not at all defined and the definition of the 'Housing Scheme' does not include the land required for the defence purposes. In view of the above matter, w hold that the reference application of the petitioners falls outside the purview of section 16 of the Ordinance of 1982. Consequently, the District Judge was competent to dispose it of in accordance with the provisions of the Land Acquisition Act.
14. ' Assuming but not conceding that the purpose for which the land of the petitioners was acquired by the Government is included in the definition of the 'Housing and Development Schemes' as given in the Ordinances of 1979 and 1982, we are of the opinion that still the reference petition in respect of its award before the reference Judge did not abate under section 16 of the Ordinance for the simple reason that no scheme of such land was approved and notified either by the Government or by its any Official Development Agency empowered by it to approve such scheme.
15. We find ourselves unable to agree with the reasoning of the District Judge given in his judgment that the Notification of the said land under section 5, L. A. A. Issued by the Government and referred to somewhere earlier in this judgment, shall be deemed to be a prior approval of the scheme by the Government in respect of this land. The above conclusion of the District Judge is based on a far-fetched inference which in the context of the factual and legal position of the present case, cannot be drawn. The Notification under section 5-A, L. A. A. Is only intended to bring to the notice of the owner of the land that his land is being acquired and that if he has any objection to its acquisition, he should file the same in writing to the Collector Land Acquisition. Therefore, reference to the issuance of Notification under section 5, L. A. A. By the District' Judge appears to be out of place here but, anyhow, the Government had also issued Notification under section 6 of the Land Acquisition Act, copy of which is Exh. P.H./3 on the file, declaring that the land in question was needed for the public purposes i,e, for defence purposes. Issuance and publication of this Notification also did not amount to approval of the scheme in respect of the land prepared by the concerned authority as envisaged under section 3 of the Ordinance of 1979 or 1982. Such a declaration is a mandatory requirement of the Land Acquisition Act under which the land of the petitioners was acquired and we fail to see how the issuance of such Notification in any way tantamounts to the approval of the 'Housing Scheme' required to be approved under the aforesaid Ordinances. Such a scheme should be a formal scheme prepared in black and white by the concerned Agency and go approved by the Government or its Official Development Agency authorised in this behalf. The learned counsel for the respondents has frankly conceded a that the issuance of any Notification by the Government under the Land Acquisition Act shall not be deemed to be an approval of the scheme a visualised under the aforesaid Ordinances but he has contended that the scheme in respect of the land in question has been prepared and approved by the Ministry of Defence and as such it shall be deemed to have been approved by the Government or at least by its Official Development Agency. But the above contention is not sustainable either on facts brought on record or by legal position that prevails in this respect. There is nothing on record to show that the Ministry of Defence had prepared any Development Scheme in respect of the petitioners' land and got it approved by the Azad Government of the State of Jammu & Kashmir or its any Official Development Agency. Even if it is assumed that before the land of the petitioners was acquired by the Government, the Ministry of Defence, Government of Pakistan, had prepared and approved the scheme pertaining to it, we are of the view that such an approval cannot be treated an approval by the Government of Azad Jammu & Kashmir or any of its Official Development Agencies, authorised to do so on its behalf. The said Ministry is not a Ministry of the Azad Kashmir Government and as such it any approval of the scheme, would not amount to an approval by the Azad Kashmir Government which has a separate legal and political entity from that of Government of: Pakistan. The Government, as defined in the Ordinance of 1979 or 1982, means the Government of Azad Jammu & Kashmir.
16. For the reasons stated above, we find ourselves unable to subscribe to the view of the Court below that the land of the petitioners was acquired for the Development and Housing Scheme and that such a scheme had received prior approval of the Government or its any Official Development Agency. In / this view' of the matter, the reference pending before the District Judge in respect of the award made by the Collector for acquiring the land of the petitioners had not abated under section 16 of the Ordinance of 1982 and h continued to enjoy the powers to decide the same in accordance with the provisions of the Land Acquisition Act.
17. As regards the other points raised by the learned counsel for the petitioners, we do not find much substance in them. The ruling of the Supreme Court cited by the learned counsel for the petitioners and referred to above, is not applicable to the present case as in the said case, the question of abatement of certain proceedings pending in any Court of law, was not under consideration. V Similarly the contention of the learned counsel for the petitioners that the order under revision is mala fide does not find support from anything patent on , record of the case. This allegation requires detailed examination which cannot " be made in the present petition.
18. During the course of arguments, the learned counsel for the petitioners had made a request that the reference petition be disposed of by this Court because the evidence on all the issues framed in this case has been recorded and the case is ripe for judgment but we are afraid, in the circumstances of the case, we cannot accede to this request of the learned counsel for the petitioners. The Court of reference Judge is a special Court which has the exclusive jurisdiction to decide the reference made to it by the Collector Land Acquisition, under section 18, L. A. A. We are not deciding this case as an appellate Court but it is being disposed of in exercise of revisional jurisdiction vested in it under the Code of Civil Procedure, in exercise of which it does not appear to be lawful to decide the reference application. Similarly, we find ourselves unable to agree with the request of the learned counsel for the petitioners that in case of setting aside of the order of the reference Court, under revision, the case be sent to some other Judge for disposal. Such a course of action to be adopted in exercise of revisional jurisdiction, in or view, would not serve the ends of justice. It is desirable that before transferring a case from one Court to another, the parties to it be given an opportunity of being heard and the report of the Presiding Officer of the Court concerned about the ground of transfer be also called for and considered.
19. For the foregoing reasons, we accept this revision petition, set aside the order of the District Judge, Poonch dated 31-1-1983 whereby he dismissed the reference made by the Collector, Land Acquisition to him for the determination of the compensation amount allowed to the petitioners in the award made by him and remand the case to the District Judge, Poonch (Rawalakot) with the direction that the above reference be decided on merits in accordance with the law. In view of the particular circumstances of the case no order as to the costs is made.
20. P D 1983 Azad J & K 47 Before Sardar Muhammad Ashraf Khan, J Sardar AKHLAQ AYYUB KHAN-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No,. 46 of 1983, decided on 2nd July, 1983.
21. Criminal Procedure Code (V of 1898)- - S. 497-Prevention of Corruption Act (H of 1947), S. 5(2)Penal Code (XLV of 1860), S. 409/109-Case not falling within prohibitive clause of S. 497-Grant of bail, held, becomes discretionary with competent Court-Discretion to be exercised in favour of accused-Refusal of bail in such case, held further, should be an exceptionMerefact that accused is alleged to have embezzled huge amount is per se no ground for refusing bail to accused. [p. 49]A & B PLD 197&SC(AJ&K)83 and 1078 SCMR 64 ref. Mumtaz Hussain Rathore for Petitioners.
22. Rafkiue Mahmood Khan, Addl. A.-G. For the State. Date of institution : 16th June, 1983.
23. ' This bail application has been moved on behalf of Akhlaq Ayub Khan, petitioner against whom a case under section 5(2), Prevention of Corruption Act and section 409/109, A. P. C., has been registered at and is being investigated by Police Station, Bagh.
24. ' The brief facts giving rise to the present bail application are that on 29-3-1983, Sakhi Muhammad Khan, D. F. C. Poonch wrote a letter to the Superintendent of Police, Poonch wherein it was intimated that the petitioner was a Civil Supply Inspector of the Food Department, presently posted at Hari Gehl and was Incharge of the Government Stores meant for the distribution of food grains to the people living within the jurisdiction of Ration Depots of Hari Gehl and Chanala, Tehsil Bagh. It was further stated in the said letter that on 3.3-1983, on checking the record pertaining to the office of the petitioner, it was found that the vouchers of wheat-flour of the value of Rs, 2,13,966 and the sale price of the gunny bags amounting to Rs, 8,940 were not entered and accounted for in the stock register whereupon the petitioner was required to submit his explanation therefor, but instead of giving the required explanation, the petitioner absented himself from duty from 24th March, 1983 without any information to the Head Office. The said letter also contained the statement that the absence of the petitioner from duty without leave was a pointer to the fact that an amount of Rs: 2,22,906 has been misappropriated by him. The above letter was marked to the D. S. P. Bagh who got the case registered against the petitioner under the aforementioned sections with the Police Station, Bagh and during the investigation of the case, the petitioner was arrested from Kara* ' The petitioner applied for the grant of bail to the Special Judge, Anti-Corruption, Poonch but his bail application was rejected by the said Court vide his order dated 15-6-1983. ' No,w, the petitioner has approached this Court for his release on bail.
25. ' I have heard the learned Counsel for the petitioner as well as the learned Additional Advocate- General for the State and also gone through the relevant record of the case. The learned counsel for the petitioner has made the following submissions in support of the bail application :-
(1) That the learned Special Judge, Anti-Corruption has refused bail to the petitioner without any lawful ground and rejected his bail application on account of certain conclusion based on mere surmises and conjectures which cannot be treated as evidence against the petitioner.
(2) That the petitioner is in Judicial custody and as such, his detention is not at all necessary for the purpose of investigation of the case against him and that, rather on the contrary, the case against the petitioner being the case of rendition and auditing of the accounts of the Government Department, the releak of the petitioner on bail would facilitate the investigating agency in coming to the correct conclusion.
(3) That the bail is not prohibited in offences for which the petitioner is charged and the mere allegation of embezzlement of huge amount is not per se a sufficient ground for refusing bail to him who is prepared to furnith security of any amount for his appearance in the Court of law, pending the decision of this case.
26. ' On the other hand, the learned counsel for the State has opposed this application mainly on the ground that the petitioner has misappropriated a huge amount and that there is likelihood of the petitioner's ascension in case he is released on bail. It is further argued that the petitioner would rather misue his freedom on bail by tempering with the evidence and witnesses.
27. After giving my due consideration to the arguments addressed at the bar and the facts and circumstances of the case, I am of the opinion that it not a fit case where bail should be disallowed to the petitioner. The learned counsel for the State has also admitted that the case of the petitioner do not fall within the prohibitive clause of section 497, Cr. P. C which places a bar on the grant of bail to a person accused of an offence punishable wit death and transpiration for life. This being the case, grant of bail become discretionary with the competent Court and from the pronouncements of the superior judiciary of Pakistan as well as Azad Kashmir the policy of the la appears to be that such a discretion should be exercised in favour of the accused person. The grant of bail in cases where punishment is not dealt or transportation for life, should be a rule and refusal thereof should be an exception to that rule. The above rule is based on a presumption that an accused is innocent till his guilt is proved and as a presumably innocent person, he is entitled to every freedom and every opportunity to look after his own case. I do not find any exceptional circumstance which may stand in the way of grant of bail to the petitioner in view of the general policy of the law referred to above. The mere fact that a huge amount is alleged to have been embezzled by the petitioner, is per se no ground for refusing bail to him. This view is fully supported by authorities such as PLD 1978 A J & K (SC) 83 and 1978 SCMR 64. I also do not find any substance in the contention of the learned counsel for the State that the petitioner is likely to tamper with the evidence and the witnesses if he is enlarged on bail. The evidence against the petitioner in this case mostly consists of entries in the official record of the Food Department and I fail to see how the petitioner would tamper with such evidence which would be in the custody of the Government servants in case he is let off on bail. Similarly, at this stage, it cannot be presumed that the petitioner would go out of the country in case of his release on bail, as is contended by the learned counsel for the State. There is nothing positive on the record to show that he made any such attempt. The petitioner is a Government servant and resident of Azad Kashmir and, as such, no such presumption be taken in his case at this stage.
28. ' For the foregoing reasons, I do not find that any interest of justice would be served by continuing to confine the petitioner in the judicial lock up, as such a course of action would amount to withholding the concession of bail as a punishment which thing is looked upon with disfavour by the trend of the recent decisions of the superior Courts of Pakistan and Azad Kashmir. I, therefore, allow the petitioner bail in the sum of Rs, 2,00,000 (two lac) with two sureties of the like amount who shall be liable to pay the said amount individually and collectively in case of forfeiture of the security, to the satisfaction of any Magistrate Ist Class, Tehsil Rawalakot or Havel.
THE END