' The petitioners were accused persons in case F.I.R. No,29/86 registered at Police Station D.A.C.E., Lahore and were being tried by Mr. Ijaz Hussain Rizvi, Special Judge Anti-Corruption, Lahore. An application was made under sections 233 and 234, Cr.P.C. For passing of appropriate orders in accordance with law and separating the challahs against the petitioners. In the application it was contended that joint trial of the petitioners .Was illegal and that the charge, as framed, was also in contravention of the provisions of sections 233 and 234, Cr.P.C. A separate trial was also claimed. .2. This application was heard and dismissed by Syed Ijaz Hussain Rizvi, Special Judge Anti- Corruption vide impugned order, dated 23-2-1995 which is impugned in the present revision petition.
3. The learned counsel for the petitioner submits that according to law the accused had a right to claim separate trial and in any case 12 transactions of having received amounts of 12 separate cheques issued by Accountant-General, Punjab to the State Bank of Pakistan and each cheque having been received by a different person the same could not be made the head of the same charge and the same also contravene the provisions of section 222(2), Cr.P.C. It was also contended that Mr. Ijaz Hussain Rizvi, Special Judge Anti-Corruption, Lahore suffered disqualification and his appointment as Special Judge, Anti-Corruption was illegal.
4. The learned Assistant Advocate-General opposed the revision petition and 'contended that the impugned order was well-reasoned and the trial Court had justified its order by quoting precedents. As to the objection of disqualification incurred by Mr. Ijaz Hussain Rizvi, Special Judge Anti-Corruption, Lahore regarding his appointment as such Judge the learned Assistant Advocate- General submitted that the termination order having been rescinded no Judge was absolved of any stigma that he had and which could constitute a disqualification.
5. I have considered the arguments of the learned counsel for the parties and have given my anxious consideration to the points of law involved.
6. The Special Judges are appointed by the appropriate Government under section 3 of Criminal Law Amendment Act, 1958 (Act XL of 1958). Section 3 of the said Act and especially subsection (2) thereof is couched in such a language that the disqualifications are mentioned which should not be there in a person who was to be appointed a Special Judge. It would be appropriate to reproduce subsection (2) of section 3 which reads as under:-- "(2) No person shall be appointed as Special Judge unless he--
(a) is, or is qualified to be a Judge of a High Court; or
(b) is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate and has not retired from Government service or at any time been removed or dismissed from such service: ' Provided that no Assistant Sessions Judge shall be appointed as Special Judge unless he has been an Assistant Sessions Judge for not less than three years: ' Provided further that no District Magistrate or Additional District Magistrate shall be appointed as Special Judge unless he has exercised either the powers of a Magistrate 1st Class for not less than 10 years or powers under section 30 of Criminal Procedure Code for not less than 3 years."
7. Mr. Ijaz Hussain Rizvi was appointed as Additional District and Sessions Judge on 23-8-1084 on probation for two years. The probation was extended by yet another one year w,e,f, 24-8-1986 to 23-8-1987. The period of probation had not yet expired that Order No,SV.1-17/80(P.II), dated 19-8- 1987 terminating the services of Mr. Ijaz Hussain Rizvi under section 10(1) of Punjab Civil Servants Act, 1974 with immediate effect was issued. This order of termination was rescinded by the Government of Punjab vide Order No,SV .23- 3/87, dated 23-5-1988. Even after the decision of the order of termination on 23-5-1988 the officer had not been accepted back in the Judiciary by the High Court and Mr. Ijaz Hussain Rizvi was posted by the Government of the Punjab, on the executive side, in the Food Department of the Government.
8. The question for determination by this Court would be whether termination under section 10(1) of Punjab Civil Servants Act, 1974 amounted to disqualification as mentioned in section 3(2)(b) of Act, 1958 supra. The disqualification was mentioned as:-- ".... And has not retired from Government service or at any time been removed or dismissed from such service."
' Mr. Ijaz Hussain Rizvi of course had not retired from Government service and so the later part of the disqualification. Would be relevant for consideration. This clause was considered in Mehmood-ul- Hassan v. The State 1984 PCr.LJ 1107 by Mr. Justice Rustam S. Sidhwa, as he then was, and a portion of paragraph 9 of the said judgment reads as under:-- "9. .... But where removal or dismissal is followed by re-instatement, it could be urged stigma stands wiped off and the person should be deemed as if he was never removed or dismissed. In such a case, the disqualification arising out of his removal or dismissal, would be rendered nugatory. But since it is the intention of the Government to appoint Special Judges out of a special class of persons who not only possess long experience, have held senior appointments and are serving officers, but who also have an unblemished career by never having been removed or dismissed from service that the words has ... At any time' been prefixed to the words 'been removed or dismissed from such service'. The words, therefore, ' at any time' refer to the factum of removal or dismissal as an event occurring at a point of time, irrespective of its effect. Had the words 'at any time' not been there, the expression could have been stretched to refer to the removal or dismissal, as indicative of the officer's legal right to serve, or otherwise. The words 'at any time', therefore, clearly denote that though the proposed officer may have been re-instated, after his removal or dismissal, he would still continue to suffer the disqualification to hold the office of Special Judge."
' In the aforementioned case the Special Judge Punjab had been prefatorily retired from service and it was held that special pre-mature retirement amounted to removal from service effected at the instance of the Government as contemplated in section 3(2)(b) in spite of the fact that he was re-instated later. It was also observed therein that:-- ".... Very event of his having been removed earlier disentitled him to be appointed as Special Judge thereafter. The Special Judge was therefore, incompetent to hold the office. He had, therefore, no jurisdiction to try the appellant's case."
' The services of Mr. Ijaz Hussain Rizvi were terminated before the expiry of the period of probation and that amounted to removal of service and as such Mr. Ijaz Hussain Rizvi suffered the disqualification as given in section, 3(2)(b) of Pakistan Criminal Law Amendment Act, 1958 and as such had no jurisdiction to try the present petitioners.
9. The dictum as laid down in Mehmood-ul-Hassan's case referred supra was followed in Ihsan Ullah Khan v. The State 1985 PCr.LJ 1125. In the said case Ch. Muhammad Islam the learned Special Judge had framed the charge. He had also been retired from service with immediate effect earlier and was reinstated later and it was held that the entire proceedings before Ch. Muhammad Islam stood vitiated. In State v. Muhammad Ashraf and others 1986 PCr.LJ 712 the disqualification as mentioned in section 3(2)(b) of Act supra was considered. The same was also a case which was tried by Ch. Muhammad Islam, Special Judge Anti-Corruption and it was held that the impugned judgment of acquittal of respondents was illegal as well as perverse. The said judgment of acquittal was set aside and the appeal of the Government was accepted and the case was remitted to the Court for retrial.
10. Placing reliance on the above-cited judgments of this Court, I accept the present petition and hold that Mr. Ijaz Hussain Rizvi, Special Judge Anti-Corruption suffered disqualification as given in section 3(2)(b) of Pakistan Criminal Law Amendment Act, 1958 and his appointment as Special Judge Anti-Corruption, Lahore was illegal and 'all proceedings conducted by him in criminal cases pending before him are without lawful jurisdiction. The impugned order, dated 23-2-1995 is accordingly set aside. The revision petition is accepted and it is ordered that the trial Court shall decide the application of the present petitioners, disposed of vide order, dated 23-2-1995, in accordance with law treating the same as pending.
Revision .