' This Criminal Revision is directed essentially against an order dated 17-11-1996 whe,reby learned Special Judge Anti-Corruption, Lahore recalled petitioner's acquittal order dated 2-7-1995 passed in his favour by Syed Ijaz Hussain Rizvi, the then Special Judge Anti-Corruption, Lahore.
2. The brief facts are that the petitioner is a Patwari. He alongwith others was facing trial under section 420/468/471/218/34, P.P.C. Read with section 5(2) P.C.A., 1947. The charge against them was that acting in collusion with each other, they had forged an allotment order and attested Mutation No,15687 in favour of fictitious persons. As for the petitioner, he was arraigned for having entered the alleged bogus mutation by using his office as Patwari.
3. After the recording of the evidence of some of the witnesses an application was submitted under section 249-A/265-K, Cr.P.C. On behalf of the petitioner and one Munawar Ali Shah seeking therein that the charge qua them was groundless and even if the entire evidence were to be recorded, there was no possibility of the case being established against them.
4. The then learned Special Judge Anti-Corruption, Lahore (Syed Ijaz Hussain Rizvi) vide his order dated 2-7-1995 dismissed the above application vis-a-vis Munawar Ali Shah. Howsoever, as for petitioner the learned Judge held that there being no incriminating material available on the record against him, recording of further evidence would not in any manner advance the prosecution case against him. Petitioner was, thus acquitted under section 249-A, Cr.P.C. Without prejudice to the trial of the co-accused.
5. While sitting in revision over a certain interim order passed by Syed Ijaz Hussain Rizvi (Special Judge Anti-Corruption, Lahore, this Court on 1-10-1995 held that all the proceedings before the said Judge (Syed ljaz Hussain Rizvi) were without lawful authority as he was not duly qualified to hold the office of Special Judge Anti-Corruption. The proceedings in that case were thus ordered to be held afresh. Muhammad Riaz v. State (Criminal Revision No,215 of 1995).
' Treating the above order of the High Court as a judgment in rem, the incumbent Special Judge, reckoned that petitioner's acquittal order dated 2-7-1995, was also without lawful authority in view of the High Court order dated 1-10-1995. He, thus, issued process against the petitioner on 17-12- 1996, to face his trial afresh, regardless that he had been acquitted on 2-7-1995 much before the above judgment of the High Court.
6. The petitioner made an application to the learned trial Court seeking withdrawal of the above order for fresh trial, on the ground that he had been acquitted by his predecessor (Syed Ijaz Hussain Rizvi) on 2-7-1995. His acquittal had not been challenged by way of an appeal or revision.
The same, as such, had attained finality and in no way could be styled as a pending matter.
Recalling the order of his acquittal was also not permissible in view of the provisions of section 369, Cr.P.C.
' The learned Special Judge rejected petitioner's application on 10-10-1997 holding that as the Lahore High Court, through its judgment dated 1-10-1995 in Criminal Revision No,215 of 1995 had held that Syed Ijaz Hussain Rizvi suffered from a disqualification in the matter of his appointment as Special Judge Anti-Corruption; "all proceedings conducted by him in criminal cases pending before him were without lawful jurisdiction". Basing his order on the findings of the High Court, the learned Special Judge observed that as the "very appointment" of the Presiding Officer, Syed Ijaz Hussain Rizvi, "was illegal then all orders and judgments passed by him were also illegal and those orders and judgments" were, in no way protected by section 369, Cr.P.C.
7. This revision is directed against both orders dated 17-11-1996 as well as order dated 10-10-1997 passed by the learned Special Judge, Anti-Corruption, Lahore.
8. Syed Muhammad Kaleem Ahmed Khurshid, Advocate learned counsel for the petitioner submits that both the impugned orders offended against petitioner's fundamental rights set out in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 which provide that no person shall be prosecuted or punished for the same offence more than once. Amongst others, on this point reliance was placed upon judgment of this Court in Criminal Appeal No,117 of 1995.
' It was further added by him that the judgment in Criminal Revision No,215 of 1995 decided only a specific lis raised before it. Being relatable only to the facts of a particular case it did not qualify for being treated as a judgment in rem. The order of acquittal of the petitioner passed on 2-7-1995, was not in issue before the High Court in the adjudication of Criminal Revision No,215 of 1995. The observation therein made by the learned Judge, that "all proceedings conducted by him (Syed Ijaz Hussain Rizvi) in criminal cases pending before him were without lawful jurisdiction" amounted to just an obiter dicta and could not have been used by the trial Court to undo the acquittal earned by the present petitioner.
' It was further argued that de facto doctrine was an established part of our 'corpus juris'. A subsequent discovery of disqualification in appointment of a Presiding Officer did not affect the cases already decided by him. It goes without saying he maintained, that the judgment in Criminal Revision No,215 of 1995 could not be given retrospective effect.
9. Mr. Naveed Rasool Mirza, learned Additional Advocate-General submitted that he had no cavil with proposition of law as propounded by the learned counsel for the petitioner but maintained that he would not attribute any impropriety to the learned Special Judge Anti-Corruption, Lahore.
Error if any had crept in, on account of the observations of this Court in Criminal Revision No,215 of 1995 to the effect all proceedings conducted by Syed Ijaz Hussain Rizvi in all criminal cases before him were without jurisdiction and lawful authority.
10. I have attended with care, to the submissions made at the bar. Undoubtedly, an order of acquittal was passed on 2-7-1995 in favour of the petitioner, and no appeal or revision was filed against in this behalf. It has thus become final and constitutional protection against prosecution over again was fully attracted.
' Article 13 of the Constitution spells out a fundamental right that no person can be retried or punished twice for the same offence It provides as follows:
13. Protection against double punishment and self-incrimination.--No person... ...
(a) shall be prosecuted or punished for the same offence more that once; or
(b) ..... .... ....
Similar protection is provided for in section 403, Cr.P.C. Read with section 26 of the General Clauses Act, but the same offers a purely procedural shield. Article 13 of the Constitution on the other hand, has translated this procedural check into a Constitutional guarantee which cannot be taken away or A whittled down even through a legislative measure. It is difficult to countenance that an obiter dicta of this court, in a different case can frustrate a substantive right provided for by the Constitution itself. The scope and parameters of Article 13 have been discussed by me in detail in another case Criminal Appeal No,117 of 1995.
11. If one were to look for precedents dealing with a situation close to the one in hand; Sherin Bacha v. Namood Iqbal PLD 1993 SC 247 provides an answer. In this case, the respondents had filed a complaint under section 447, P.P.C. Alleging that after delivery of possession the appellants had tried to dispossess them. This complaint on being found to be false, was ordered to be filed, the same was, somehow, got revived and fresh inquiry/trial commenced. The Government however, on receipt of a revision application set aside the order of revival of the complaint, holding that possession having been delivered by the Tribal Affairs Department, there was no occasion for fresh trial. Government's decision was challenged before the High Court in its Constitutional jurisdiction.
The High Court held that as the complaint under section 447, P.P.C. Had hot been dealt with properly; it required to be re-investigated/re-tried and the case was, consequently sent back to the trial Court for fresh proceedings. The accused/appellant moved the Supreme Court and agitated the principle of autre fois acquit (protection of Article 13 of the Constitution read with section 403, Cr.P.C.). It was submitted that they had been tried already on the same facts in a police case by E.A.C. Malakand and acquitted them on 13-3-1989. Their acquittal had remained unchallenged until the above referred decision of the High Court in Writ jurisdiction was passed on 17-4-1990.
' The Supreme Court of Pakistan held that the verdict of acquittal having not been challenged before any higher forum, neither the Constitution, nor the Code of Criminal Procedure read with General Clauses Act permitted retrial of an offence. It was held that a person having once been tried as an accused and finally acquitted, he acquired a vested right and Constitutional protection against a second trial for the same offence. I, thus find myself in agreement with the learned counsel for the petitioner, that as the petitioner stood acquitted under section 249-A, Cr.P.C. Unless his acquittal was set aside by a higher forum, the issuance of process for re-trial by the same Court offended against petitioners fundamental right of immunity from double prosecution or punishment.
12. While issuing process for fresh trial of the petitioner on the ground that the Court which tried him lacked the requisite qualifications for the office of Special Judge Anti-Corruption, the learned Judge lost sight of the famous 20th of March 1996 Apex Court's judgment, popularly known as Judges' Cases. AlJehad Trust through Raeesul Mujahideen Habib-ul-Wahab Khairi and others v.
Federation of Pakistan and others PLD 1996 SC 324. In this case after the Supreme Court determined the criteria for eligibility for appointment of High Court Judges; quite a few of them had to be laid off as they did not qualify for appointment. The denotification of such Judges however, did not in any manner affect the vires of the orders/judgments issued by them.
' Mr. Naveed Rasul Mirza learned Additional Advocate-General has rendered good assistance and drew my attention to the fact that de facto doctrine ably canvassed by the petitioner's learned counsel on the strength of judgments from foreign jurisdiction is well recognized by our own Courts also. He made reference with advantage to Sindh High Court dictum in Atlas Autos Ltd. And 5 others v. N R. C , Islamabad and 16 owners reported as PLD 1990 Kar. 362, 375. The relevant portion reads as follows:-- "A Judge or a member of a Tribunal, who holds office under colour of lawful authority and not as a mere intruder or usurper, though his appointment may be defective, is a de facto Judge or a member of a Tribunal. His judgments/orders/actions, have the same effect as of a Judge or a member of Tribunal de jure and that the same are saved by the de facto doctrine as a matter of necessity and of public policy in order to avert chaos and confusion."
13. In other case from Karachi where the decrees passed by Judge Special Banking Court were called into question; on the ground that being a Judge he did not hold the requisite qualification for the purpose of appointment as Special Judge. The Division Bench of Sindh High Court dismissed the same and by holding: "In any case the orders, judgments and decrees passed by Mr. Qureshi are saved by de facto doctrine. This doctrine gives validity to acts of Judges de facto whatever defects there may be in the legality of their appointment. The doctrine is founded upon considerations of public policy and necessity for the protection of public and individuals whose interests may be effected thereby and to prevent needless confusion and endless mischief."
' Abdul Salam Qureshi and another v. Judge Special Court of Banking for Sindh and another PLD 1984 Kar.
462.
14. The issue of de facto doctrine also came up before the Supreme Court of India, and of course, settled in a case reported as Gokaraju Rangaraju v. State of Ahundra AIR 1981 SC 1473. After the Indian Supreme Court had declared the appointment of an Additional Sessions Judge as invalid; issue arose as to what would be the effect of the Supreme Court pronouncement on the validity of the judgments passed by him. To resolve this point the Supreme Court of India also feel back on the de facto doctrine and observed: "The acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure." The doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside, and proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone."
15. The de facto doctrine is essentially a doctrine of necessity intended to bring an end to the legal infirmities to prevent confusion in the conduct of public business and, to promote security of private life. Our Supreme Court recognized this doctrine much earlier, in the case of Lt.-Col. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98. Constitutional amendment was sought to be struck down on the ground that it had been voted upon by members who otherwise were not quatined.
The Constitutional amendment was held to be unassailable as, at any rate, the allegedly disqualified persons had acted as de facto members. They had acted under bona fide plea that they were entitled to so act and had at least, fair colour of title and they had also performed their duties with public acquiescence. In law they were treated as good members as other de jure members of the National Assembly.
16. The British Courts recognized de facto doctrine way back in the 18th Century in Milward v.
Thatcher (1787) 2 TR 81, p.87. It was observed as follows:-- "The question whether the Judges below be properly Judges or not, can never be determined, it is sufficient if they be Judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the Judge de facto."
17. Similarly the Lord Chancellor in Scadding v. Lorant (1851) 3 HLC 418, held: "With regard to the competency of the vestry men, who were vestry men de facto, but not vestry men de jure, to make the rate, your lordship will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties and whose title to the office on the part the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of restoring to ordinary legal remedy to set right anything done by the officers, taking the law into their own hands."
18. The de facto doctrine is equally recognized in the United States of America from as far back as the end of the 19th Century. It was observed by Field, J. In Norton v. Sheiby County as follows:-- "The doctrine which gives validity to acts of officers de facto whatever defect there may be in the legality of their appointment or election is founded upon considerations of public policy and necessary, for the protection of the public and individuals whose interests may be affected thereby, Offices are created for the benefit of the public, and the private parties are not permitted to enquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions for the good order and peace of society. Their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question."
19. The same principle was reobserved by Bradhury, J. In State of Ohio v. Gardner in the following terms: "We think that principle of public policy declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared Constitutional, though we think such officers might aptly be called de facto officers." 1896 SC Ohio 54 Ohio St.24 (Cases on Constitutional Law by M.C. Gonvey and Haward. p.102).
20. The learned counsel for the petitioner submitted that the trial Court had erred in holding that the High Court judgment in Criminal Revision No,215 of 1995 also rendered the petitioner's acquittal as well of no consequence. That Criminal Revision was directed against dismissal of an application seeking separate trial in all together a different case. The issue in said Criminal Revision essentially was whether the charge had been framed in violation of section 222, Cr.P.C. But a collateral argument was also advanced that as Syed Ijaz Hussain Rizvi, the learned Special Judge suffered disqualification, in respect his appointment as Special Judge and on that score alone his decision merit to be set aside being without jurisdiction. The learned Judge in Chambers instead of adverting to the legal/factual controversy relatable to section 222, Cr.P.C. And the allied provision, confined himself rather to the question of qualification for the appointment of a Special Judge and set aside, the order under revision solely on the ground that Syed Ijaz Hussain Rizvi was not legally qualified to hold the post of Special Judge Anti-Corruption. This decision it was rightly submitted, carried no weight as it was not passed in a writ of quo warranto and nor was Syed Ijaz Hussain Rizvi a party to the lis before the High Court. I agree with the submission that it was, at best, a finding in collateral proceedings and thus had no binding legal authority about it. Reference in this behalf was also made to the decision of Supreme Court of Pakistan in the Lt.-Col. Farzand Ali's case PLD 1970 SC 98 wherein, collateral attack on status of holder a public office has been held to be not permissible at all. It was observed, that to do so collaterally in proceedings not taken to test, the validity of their title directly, would lead to serious inconvenience to the public and those individuals whose interest may have been affected. In the absence of a direct attack on a person's right to hold an office it was opined that their acts should not be invalidated merely because they could have, in a proper proceeding in the nature of writ of qua warranto be disqualified from continuing, as holders of such office.
21. This view of the Supreme Court prohibiting attack on title to hold office in collateral proceedings finds support from foreign jurisdiction as well. After taking into account large number of decisions from American and English jurisdiction, in case of office of a Judge, the Supreme Court of Canada, came to the conclusion:- "that it is not open to attack, in a collateral proceeding, the status of de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority and it is also clear that the proper proceedings to question his right to the office is by quo warranto information." (Re: Toronto R. Co. And City of Toronto 10 ER 164.
' Colley in his Book on Constitutional Limitation, Eighth Edn., Vol. 2, p.1357 states as follows: "The acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure."
Needless to add that the term "collateral proceedings" as opposed to "direct proceeding" entailing challenge to Judge or Tribunal, has to be given a broad meaning, so as to include almost every proceeding which does not seek to remove the Judge or Officer concerned, including any attack upon the decision itself, Amnon Rubinstein in his book on Jurisdiction and Illegality at p.204, states as follows: "This principle has been evolved purely upon considerations of public policy and as such collateral proceedings have in this context invariably been given a particularly broad meaning so as to include almost every proceeding which does not seek to remove the Judge or officer concerned including any attack upon the decision itself."
22. It seems that the learned Judge in Chambers while deciding Criminal Revision No,215 of 1995 did not advert to the ex-exposition of law made by the Supreme Court of Pakistan in Farzand Ali's case (supra). It was not referred to either in the cases relied upon in the judgment given in Criminal Revision No,215 of 1995 i,e, Ehsanullah Khan v. The State 1985 PCr.LJ 1125 and the State v. Muhammad Ashraf and others 1986 PCr.LJ 712 which on the reasoning in Mahmood-ul-Hassan case reported as 1984 PCr.LJ 1107. With utmost respect, I do not find myself in agreement with the pronouncement of my learned brother in Criminal Revision No,215 of 1995 and nor the decision relied upon therein as they are not in conformity with the law laid down by the Supreme Court of Pakistan in Lt.-Col. Farzand Ali's case (supra).
23. Another contention raised was that the decision, in Criminal Revision No,215 of 1995 even if lawful, could not affect the acquittal of the petitioner as the order of acquittal had been passed long before the pronouncement of the High Court in Criminal Revision No,215 of 1995. There is considerable weight in this contention of the learned counsel. Even if the Criminal Revision No,215 of 1995 were to be treated as a writ of quo warranto (direct proceedings) the judgment pronounced therein could take effect only from the date of pronouncement of such judgment and not from any date anterior thereto. In short, even if the judgment in the above said Criminal Revision were notionally treated as a quo warranto writ, it could not have altered the effect of decisions entailing acquittal of the petitioner PLD 1970 SC 98 at 128.
24. Apparently, the learned trial Court while passing order on 10-10-1997 had taken the High Court's observation in Criminal Revision No,215 of 1995 rath, out of context. He failed to note that High Court's judgment had bearing, if any, only on cases pending and not those already decided. Once a Court passes an order of acquittal or conviction, it becomes functus officio qua the accused. If such an order is not challenged, by way of an appeal or revision, it attains finality. In the case in hand, the order dated 2-7-1995 acquitting the petitioner, had attained finality qua him, even though the trial of the co-accused was still pending. The observations of this Court, that the Special Judge was disqualified for want of qualification, having been made in another case were of no consequence as far as petitioners acquittal is concerned. At best, such observations amount to just an obiter dicta. The issuance of process for retrial of petitioner vide order dated 17-11-1996 was, obviously, hit by section 369, Cr.P.C. And unwarranted in law. Orders dated 17-11-1996 and 10-10- 1997 are accordingly declared as without lawful authority and set aside. The criminal revision is consequently, accepted.
Revision .