' This is an appeal against the judgment, dated 23-10-1994 passed by Syed Ijaz Hussain Rizvi, Special Judge, Anti-Corruption, Lahore whereby he convicted Ghulam Haider Matti appellant under sections 468 and 471, P.P.C. Read with section 5(2), of P.C.A., 1947 and sentenced him to one year's R.I. And to a fine of Rs,35,000 and in case of default in the payment of fine to further R.I. For 6 months under section 468, P.P.C. And 1 year's R.I. And to a fine of Rs,30,000 and in case of default in the payment of fine to further R.I. For 5 months under section 471, P.P.C. Both the sentences were to run concurrently. No separate sentence was awarded under section 5(2), P.C.A., 1947.
2. The learned counsel for the appellant while relying upon the case of Muhammad Riaz etc. v. The State 1996 PCr.LJ 1007 submitted that the appointment of Syed Ijaz Hussain Rizvi was declared to be illegal because he suffered disqualification as given in section 3(2)(b) of Pakistan Criminal Law Amendment Act, 1958. He submitted that the appointment was not legal and all the proceedings conducted by the said Judge were without lawful jurisdiction. The learned counsel for the State admitted this position to be correct.
3. There are many authorities of this Court, which have been referred in the case of Muhammad Riaz, to the effect that a person having stigma in his service career cannot be appointed a Special Judge in view of the provisions of section 3(2)(b) of Pakistan Criminal Law Amendment Act, 1958.
4. Respectfully adopting the same view, I 'hold that the appointment of Syed Ijaz Hussain Rizvi as a Special Judge, Anti-Corruption, was illegal and all A the proceedings conducted by him in the case in hand are without jurisdiction.
5. The learned counsel for the appellant while relying upon Phulail Khan v. The State 1972 SCM R 95, Ali Muhammad v. Ata Muhammad and 4 others 1995 PCr.LJ 2024, Sohail Ahmad and 6 others v. The State and another 1995 PCr.LJ 2036, Mahmoodul Hassan v. The State 1984 PCr.LJ 1107 submitted that as the appellant had suffered the agony of the investigation and trial since 1991 the retrial would not be justified. The learned counsel for the State, on the other hand, submitted that as the appellant-accused was involved in a case of forgery of matriculation certificate for obtaining job, a retrial was necessary. He placed reliance on the case of Ehsanullah Khan v. The State 1985 PCr.LJ 1125 in support of his contention.
6. The question of retrial of an accused is a very important factor in a criminal trial and must always be decided after considering all the relevant facts constituting the offence in the case. It is not simply the period which elapsed between the occurrence and the decision, but also involves the perusal of the main evidence in the case; the nature of the alleged offence and the agony or inconvenience of the trial already suffered by the accused vis-a-vis his acquittal or conviction.
7. Two important legal questions arise while solving this controversy:--
(i) Whether the accused was acquitted or convicted by the trial Court.
(ii) The nature of the offence allegedly committed by the accused.
' In cases where the accused is acquitted in the first instance a retrial is ordinarily not required. The logic behind this view is that the accused were adjudged to be innocent during the trial which was vitiated subsequently due to some legal embargo. On the contrary in case of conviction from the trial Court, a retrial will inter alia depend upon the nature of offence allegedly committed by him. It is not each and every case of protracted agony of trial which must end with a refusal to a de novo trial and acquitted accused must not be made to face a retrial if he has already undergone the agony of a lengthy trial including the period of investigation etc. Once adjudged to be innocent is a very strong reason for declining a retrial. In the case of conviction, the accused is yet to establish his innocence in a duly established legal forum/Court of law. His fate rests upon the nature of the charge against him. If the offence is such that in the absence of a retrial it would amount to perpetuate a wrong or keep the status/position of the accused under suspicion of retrial should be ordered so that either the accused are to be cleared through a verdict of acquittal or he be sentenced to bring an end to the continuous nature of the offence. For example if some one secures a job as a Medical Officer in a hospital on the basis of a bogus degree, he cannot be absolved from a retrial and the genuineness of the degree must be probed, otherwise, the fate of the patients treated by him is anybody's guess.
8. Ghulam Haider Bhatti appellant while posted as sweeper in King Edward Medical College, Lahore, got himself appointed as Laboratory Assistant on the basis of a forged/bogus matriculation certificate. If a retrial is not ordered for getting a judicial verdict whether or not the appellant obtained appointment on the basis of a forged certificate, he will continue in service even if he really committed forgery etc. This would amount to perpetuating a wrong on legal technicalities, which cannot be permitted as an act of the Court cannot prejudice any party. The appellant must face the trial and the prosecution must be given an opportunity to prove its case against the accused.
9. In all the rulings cited by the learned counsel for the appellant except about the case of Mahmoodul Hassan the accused persons were acquitted by the trial Court as compared to Ghulam Haider, appellant, who was convicted and sentenced. In the case of Mahmoodul Hassan the retrial was not ordered probably as the conviction was simply under section 163, P.P.C. i,e, taking gratification for exercise of personal influence with a public servant. As observed in the preceding para. The offence under section 163, P.P.C. Is not of a continuous nature. The abovecited cases are not applicable to the facts of the case in hand.
10. The conclusion is that the appeal is accepted and the conviction and sentence of the appellant set aside. The case is remanded to the trial Court for fresh trial according to law from the stage from where Syed Ijaz Hussain Rizvi conducted the proceedings.