IJAZ NISAR, J.-- Shaukat Hussain Khan son of Sardar Muhammad Hussain Khan Mazari resident of Rojhan has been convicted by the Senior Civil Judge/Magistrate Section 30,Rajanpur Vide judgment dated 17.1.1985 under para 29 of Martial Law Regulation No.64 of 1959 read with section 32 of Martial Law Regulation No.115 of 1972 and sentenced to four and half year R.I. He has appealed.
2. The prosecution case was that on the demise of S.Muhammad Hussain Khan Mazari in the year 1968 a great part of his land was inherited by his son S.Shaukat Hussain Khan Mazari appellant who under the rules was required to file form L.C.XXI and XXII within one month from the date of the demise of his father but he failed and went on enjoying the surplus resumable land for about 10 years. On verification of his holdings an area measuring 1070.719 acres was found in excess of the permissible limits which was resumed on 30.4.1978. By concealing the above information the appellant had allegedly violated the provisions 8 of the Land Reforms in West Pakistan and rendered himself liable to be punished under Para 29 of M.L.R.No.64 of 1959. On the above allegations Tehsildar Mahal with powers of Sub Assistant Land Commissioner,Rajanpur filed a complaint Exh.PA against the appellant in the Court of Magistrate Section 30, Rajanpur on 3.9.1980.
The petitioner contested the case and stated that he had submitted the required declarations in September,1968 through registered post.
3. After recording evidence of the parties the learned trial Court found the case to be proved against the appellant and hence convicted and sentenced him as described above.
4. Before referring to the evidence led in the case learned counsel for the appellant has raised a preliminary objection with regard to the competency of Tehsildar Mahal with power of Sub Assistant Land Commissioner,Rajanpur to file the complaint. According to him after the repeal of the West Pakistan Land Reforms Regulation (Regulation No.64 of 1959) with effect from 11.3.1972 the offence for failing to make any declaration was made punishable under section 30 of Martial Law Regulation No.115. Section 31 of M.L.R.No.115 specifies the mode of lodging complaint for violation of Section 30. It lays down that no Court shall take cognizance under the Regulation except on a complaint in writing made by order of,or under authority from the Commission. According to him,the Punjab Land Commission had delegated power of filing of complaint against the persons contravening any of the provisions of the Regulation to Deputy Land Commissioner of the District concerned and that no such delegation of power had been made in favour of the Sub Assistant Land Commissioner but in the case in hand the complaint was filed by Sub Assistant Land Commissioner,Rajanpur under the orders of Deputy Land Commissioner, who himself being delegatee could not further delegate the powers downwards.
5. The land in excess of the permissible limit found in possession of the appellant was resumed on 30.4.1978 while the complaint against him was filed on 3.9.1980 by a person not authorised to do so.
As already stated above the commission had authorised the Deputy Commissioner of the District concerned to file complaint for failure to make any declaration or furnish any information required by such provisions and not the Sub Assistant Land Commissioner.
6. Since the complaint which was the very foundation of the case was not filed in accordance with law the whole edifice buiIt on it would fall to the ground and would affect even the jurisdiction of the Court to take cognizance of the matter.In this view of the matter,trial of the appellant was not legal. Consequently,the appeal is accepted,the conviction and sentence of the appellant is set aside and he is acquitted of the charge. However,there shall be no bar on the Land Commission to file a fresh complaint against the appellant in occordance with law.