' By mutation No, 2240 attested on 23-12-1967, Fazal Ahmad of Ghazi Rot purchased land Khasra Nos. 21 and 22 and this transaction of sale was preempted by Abdul Ghani whose suit and appeal having been dismissed came in revision to this Court. My learned brother Qaisar Khan, J. Observed that the case of the pre-emptor Abdul Ghani who claimed superiority of pre-emption, was resisted by the vendor on equal ground of contiguity, based on a sale in his favour of Khasra No, 153 land, contiguous to the suit land which was purchased by him prior to the institution of the suit under consideration. It is to be noted that the transaction of Khasra No, 153 was pre-empted by Muhammad Jan and the pendency of the suit having been brought to the notice of Mr. Qaisar Khan, J. He directed on 2.6-1975 the parties to furnish certified copies regarding the result of the case of Muhammad Jan v. Fazal Ahmad. On 25-7-75, Mr. Qaisar Khan, J. Passed the following order:- "This order should be read in continuation of my order dated 2-6-75. The facets of this case (sic) was sold on 23-12-67 and the sale was pre-empted on 18-12-1968. Fazal Ahmad vendee contested the right of Abdul Ghani on the basis of contiguity alleging that he had also purchased Khasra No, 153 on 23-1-1968 which lay contiguous to the disputed Khasra Nos. 21 and 22. Both the lower Courts have held that the defendant-vendee had purchased in fact Khasra No, 153 contiguous to the disputed khasra numbers and they therefore, dismissed the suit and appeal of the plaintiff."
2. On the other hand the purchase of Khasra No 153 along with some other khasra numbers by Fazal Ahmad on 23-1-68 was also pre-empted by one Muhammad Jan on 27-5.68. Muhammad Jan claimed superior right on the basis of contiguity and there Fazal Ahmad alleged that since he was the owner of Khasra Nos. 21 and 22 by purchase which are in dispute in this suit and which were contiguous to Khasra No, 153, he could therefore, defeat Muhammad Jan's right. On that ground the suit of Muhammad Jan was dismissed on 13-11-1976. Muhammad Jan went up in appeal to the Court of the District Judge and the District Judge came to the conclusion that the suit of Muhammad Jan could not be dismissed till the suit of Abdul Ghani against Fazal Ahmed for possession of Khasra Nos. 21 and 22 by pre-emption had been finally decided. He, therefore, accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case back on 22-3-1971 to the lower Court directing him to keep the case pending till the decision of the case of Abdul Ghani against Fazal Abroad. It is a pity, however, that that case was not taken up to the High Court in revision or appeal. Now looking at the two cases I am of the opinion that the case of Muhammad Jan had to be decided first and not that of Abdul Ghani and the suit of Abdul Ghani has, therefore, to be stayed till the suit of Muhammad Jan has been finally decided because the sale in the suit of Abdul Ghani had taken place earlier than the sale in the suit of Muhammad Jan. Under the circumstances, the suit regarding the later sale which had been pre-empted had to be decided first I, therefore, order that this revision petition should be kept pending till the decision of the suit filed by Muhammad Jan.
3. But since the District Judge has already passed an order that the suit of Muhammad he is to be kept pending till the decision of this case, under these circumstances both the suits will lie pending indefinitely without any action being taken in it I am, therefore, constrained to exercise the revisional powers of this Court in the case of Muhammad Jan and, therefore, order that notices to be issued to the parties in that case for setting aside the order of the learned District Judge with respect to the stay of that suit. This suo motu revision petition should be registered and numbered in this Court and the parties summoned for a date to be fixed by the office. This case is to be kept pending till the decision of the case of Muhammad Jan.
4. In the con'ext of the preliminary objection, following from the judgment of the learned District Judge remanding the case, reads : ....... It is, no doubt, true that the plaintiff-appellant has not preempted the transaction -embodied in Mutation No, 2440 sanctioned on 23-12-1967 but the fact remains that one Abdul Ghani has preempted this (that) sale and his suit has been stayed under section 29 of the N.-W. F. P. Pre- emption Act. The file of that case has been requisitioned and it transpires therefrom that it is still pending and has not yet been decided. If Abdul Ghani succeeds in that suit the defendant- respondent will be deprived of the qualification of co-sharership. In this state of matters the defendant-respondent cannot claim to be co sharer as the sale in his favour is subject to pre- emption suit which is yet to be decided. In the circumstances I am constrained to accept this appeal, set aside the judgment and decree of the learned Civil Judge and remand the case to him under Order XII, rule 23-A, C. P. C. With the direction that he should first decide Suit No, 2/1 of 1968, entitled Abdul Ghani v. Fazal Ahmad, and then decide this suit in the light of that decision. Parties have been directed to appear before the Civil Judge, Mansehra on 12-4-1971."
5. Syed Rifaqat Ali Shah, learned counsel for the respondent maintains that the order of remand being appealable under Order XLIII, rule 1 (u), C.P.C. Which was not appealed from, therefore, it became final and the suo motu revision was thus incompetent.
6. The objection is to be examined besides other ground to be instantly discussed, section 13 of the Court Fees Act is relevant to the point which reads :- "13. If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal .
' This view finds support from Lila v. Mohange and others (1), which reads as follows :- "Ordinarily the High Court would not interfere if another convenient remedy is open to applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. Each case must be considered on its own merits and if the Court has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of justice, there is no reason why High Court should drive the applicant to a more circuitous remedy by way of a separate suit."
' It was held in Falah-ul-Momineen Trust v. V. P. Abdullah (2) :- "The Legislature has in the Civil Procedure Code provided for all possible eventualities end to such matters which were not foreseen at that time, a provision like section 151, C. P. C. Was enacted to empower the Courts to meet such an unforeseen eventuality. Apart from section 15', C. P. C. The Court has also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction itself. The support for this view can be had from the following Passage on page 136, Corpus Juris Secundum, Vol 21.
' 'While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the cope of jurisdiction, and for the enforcement of
(1) AIR 1931 All. 623 (2) PLD 1970 Kar. 179 1977 MUSLIM SHAH v. STATE (Abdul Willi Khan Khattak, J) PESHAWAR 55 ' its judgments and mandates.' This power has been judicially recognised and stated as an implied power following from the jurisdiction itself in the Interpretation of Statutes by Maxwell, 10th Edn., on p 136 :- `Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Sul jurisdiction data est, ea quoque concessa essee videnture sine quibus Jurisdiction explicari non potuit. Thus, an Act which empowered justices to take in outh as special constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before then for those purposes. Otherwise the jurisdiction could not be effectually exercised'.
Thus it cannot be doubted that the Court has inherent power to take such stops to have its process executed and in this context even though there is no specific direction either in rules 35, 95 and 98 of Order XXI, C. P. Or rule 255 of the Sind Civil Courts Rules for police aid for getting the writ of ejectment executed, yet the Court can provide for such assistance "
7. For the foregoing reasons, this revision petition is accepted with the direction that the case of Muhammad Jan v. Fazal Ahmad shall be decidedl8 before the case of Abdul Ghani v. Fazal Ahmad.
Petition accepted. P L U 1977 Peshawar 55 Before Abdul Ghani Khan Khattak and Usman Ali Shah, II MUSLIM SHAH-Appellant versus THE STATE-Respondent Criminal Appeal No, 113 of 1976, decided on 21st May 1977.
(a) Criminal Procedure Code (V of 1898)- --- S. 428 -Appeal-Evidence, further-Object of S. 428-To see justice done-Section can be pressed into service for ends of justice whenever required either for prosecution or defence -Contention that trial having been before special Court under Suppression of Terrorist Activities (Special Courts)
Act (XV of 1975), provisions of S. 428, Cr. P. C. Not attracted, held, not tenable-Terrorist Activities i,Special Courts) Act (XV of 1975), Ss. 5 & 7.-[Evidence]. [p. 58]A
(b) Explosive Substances Act (VI of 1908)- -- Ss. 4 & 5-Explosives, possession of-Defence witness put to fairly lengthy cross-examination but not impeached so as to keep his evidence out of consideration - Appellant's brother trapped simultaneously with him and apprehended oa same day as his brother, his house having not been searched thereafter improbable but prosecution witnesses denying siarch having been made- Prosecution version that accused in both cases reached spot and apprehended simultaneously hence time of occurrence in both cases identical not consonant with reason-Arrests of two accused yet shown by joint house reports-Recovery of incriminating articles made from oint hours, hence could not be fixed on appellant alone-No blind corner from situs of arrest up to village -Accused not stated to have fallen 56 PESHAWAR ALL PAKPTAN LEGAL DECISIONS VOL. >MX into trap one after other-Description of apprehension of two persons simultaneously at same place, held, lends countenance to fact of defence version being not altogether to be ignored-lnvestigation in both cases concluding at same time yet morasilas sent to police station through different messengers and explanation not convincing-Appellant described as bad character of bundle A at trial whereas Investigating Officer in his statement before High Court describing him as bad character of bundle B-Defence, held, succeeded in making ease doubtful, case against appellant not proved beyond reasonable doubt and appellant entitled to acquittal.-[Benefit of doubt] [p. 5 818 & C Saeed Beg for Appellant.
Sahibzada Akhtar Munk, Asstt. A.-G. For the State.
Dates of hearing : 18th and 20th May 1977.
' ABDUL GH.ENI F.HAN KHATTAK, I.-Mu-Aim Shah alias Muslim son of Mohammad Noor, resident of village Darla Sheikhan, Pclice Station Kohat, District Kohat, was tried for the charge under sections 4/5 of the Explosive Substances Act and by the judgment recorded on 7-4-76, the learned Special Court found him guilty under section 5 of the Explosive Substances Act and sentenced him to three years' R. I. The convict has appeared from his conviction and sentence.
2. The prosecution case is that on 13.5-75, in the early hours, the Kohat Cantt. Police alongwith Sadder Police, Kohat under the instructions of S. P , Kohat, arranged Naka Bandi near village Sheikhan for rounding up smugglers and out-laws. At about 4-30 a. m., a person was seen approaching from the direction of village Sheikhan towards Kohat City who, after interrogation, disclosed his name as Muslim Shah son of Mohammad Noor of village Sheikhan. He was found in possession of 14 dynamites, 30 detonators, 30 pieces of safety fuse which were wrapped in a Chadar. In addition to the above, a plastic envelope and a leather package containing Chars which weighed six seers were also found on his person. The police party also recovered from him a cloth sack containing 44 cartridges of 7 m.m. And from the fold of the trousers of Muslim Shah a dagger.
3. S I. Zahiruddin (P. W. 5) wrote the Morasila (Exh. P A/1) which was sent for the registration of the case and the 1P. I R. No, 311 (Exh. P. A) of even date was registered on this Morasila The recovery of the above articles is supported by Mir Shabbaz Khan S. I. (P. W. 4). Statement of (then major)
Muhammad Ishaq, A. T. O, Head Quarter, 9 Div., Kohat Cann. (P. W 6) who opined about the explosive character of the articles sent to him, is not necessary for the disposal of this appeal to be recapitulated.
4. The plea of the appellant at the trial was false implication and stated:- "All these witnesses are police officials, hence interested persons. As a matter of fact, I had altercated with Rasul Khan A. S. I. Of P. P. Jangal Khel, who was cited as a prosecution witness but who has since been abandoned by the prosecution, and on that account, the police cone; cted a false case against me and implicated me in this case, with a view to avenge the insult, allegedly received by Rasul Khan A. S. I. At my hands.
Q.-Why are you charged and have you anything else to say?
A.-I am innocent. As stated above, I have been falsely implicated in this case. As a matter of fact, the local police carried out a search in our house and the adjoining houses. On the basis of a case, registered in P. S., Kohat Gantt. At Hat No, 310 dated 13-5-75, and in which case my brother Iraq Shah had already been challaned. During the search of our house, in pursuance of the said case, as the police party headed by Rasul Khan A. S. I. Misbehaved, I argued with him as to his authority to carry out the search which resulted in altercation, between me and Rasul Khan A. S. I. For which reason I was later falsely implicated in this case as the police made it a question of prestige."
' In defence the accused examined Yasin Shah whose evidence at the Vial was that the appellant lived in a joint house with his brother Iraq Shah who used to supply stones for the construction of a small dam near village Sheikhan, and for blasting the stones Iraq Shah used to utilise dynamite and detonators, and that at the material time on his way to his held, he, as Lumbardar, was asked by the police party to witness the search of the house of the appellant, and that one Agha Jan, a neighbour of the appellant, was found present by him with the police party inside the house, and that he saw some incriminating articles with Jawahir Shah S. I. (P. W.) and Rasul Khan A. S. I. (not examined) and that on his asking the police party that they should have offered themselves for search before conducting the house search, he was told that they had nothing on their person and that in his presence the appellant altercated with Rasul Khan A. S. I.
5. After hearing the learned counsel for the appellant and examining the record of the case, we considered it necessary to examine the investigating officer regarding certain points which are mentioned in the judgment. Mr. Akhtar Munir, Asstt. Advocate-General questioned the examination of Zahiruddin on two-fold grounds. It was contended before us that the defence had full opportunity of cross-examining the witness and that the trial having been before the Special Court under Act XV of 1975 (hereinafter called as the Act), the Provisions of section 428, Cr. P. C. Are not attracted. The first objection shall be dealt with later in the discussion of the evidence and the second objection is taken first.
6. Following from the Act may be quoted for convenience:- "5. Procedure of Speci31 Court.-(1) to (6) ..................
(7) A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed, by the Code for the trial of summons cases by Magistrates.
7. Appeals from sentences imposed by Special Court, etc,-(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court.
(3).
The provision of law reproduced above from the Act is clear on the point. We are aware of no other provisions of law dealing with this appeal nor the learned Asstt. Advocate-General has been able to tell us. Chapter of the Code provides for appeals and the provision of section 428, Cr. P. C. Is meant for recording further evidence if it is considered necessary. Why was it considered necessary, shall be instantly discussed in the succeeding paragraphs. It must be, however, made clear that this section is meant for neither of the parties to a criminal case but its object is to see that justice is done, therefore, this section can be pressed into service for the ends of justice whenever it is required, either for the prosecution or for the defence.
7. Yaqin Shah (D. W. 1) has been put to fairly lengthy cross-examination and he had not been impeached to the extent of keeping his evidence out of consideraticn. In any case, there are two versions before us. The following facts dove-tail in the direction of acceptance of the defence version:
(a) Iraq Shah brother of the appellant was apprehended at 4-30 a.m. Ca 13-5-75. Therefore, it would be improbable that the search of his house did not follow his arrest. But Zahiruddin says that the house of Iraq Shah was not searched. The appellant supported by an independent witness is emphatic about it. We are thus asked by the prosecution to accept what is normally not expected of a police officer.
(b) The appellant's brother Iraq Shah was trapped simultaneously with him per F. I. R. Illat No, 310 and the F. I. R. Relating to the appellant is Illat No, 311. The subsequent report is a corbon copy of the former except for the name of the accused person. The material portion in That No, 311:- {{URDU TEXT}}
(c) Zahiruddin has stated before us that the time of occurrence in both the cases is identical because the accused in both the cases reached the spot simultaneously and were apprehended.
It can hardly be visualised to see only one person while in fact there were two persons reaching together exactly at the same time at the bridge where they were arrested. Yet their arrest is shown by separate reports. The question that the recovery of the case property if shown as recovered from their joint house could not be fixed on him alone, cannot be 'easily brushed aside. The suspicion on this aspect is characterised by looking at the spot where there exists no blind corner right from the situs of arrest of the appellant and for that matter his brother up to village Sheikhan.
This is not the case of the prosecution that the accused fell into the trap one after the other around a blind corner. The text and substance of the report does not suggest this interpretation. The description of the apprehension of two persons, simultaneously at the same place lends countenance to the fact that the defence version may not be altogether ignored.
(d) The investigation in both the cases concluded at one and the same, time, yet the Morasilas were sent to the police station through different messengers, namely Mohammad Zaman and Haji Gul Constabless The explanation for doing so offered by Zahiruddin is not convincing. Normally one person could have taken Morasilas of both the case. Together and the contrary course adopted in this case creates a suspicion against this conduct.
(e) At the trial the appellant was described as bad character of bundle A whereas in his statement in this Court, Zahiruddin stated that he was bad character of bundle B. This is in a way indicative of the solicitous desire of a responsible police officer to depict him a bad citizen of the worst kind.
8. Keeping the above facts in view, it wi:1 not be correct appreciation of evidence and procedure to hold that the defence have not been able to make the case doubtful against the appellant, and it cannot be said that the guilt of the appellant has been proved beyond a reasonable doubt. We, therefore, set aside the conviction and sentence of the appellant and acquit him.