' The present appeal is directed against the order of Magistrate 1st Class, Gujranwala, dated the 12th October, 1988, whereby he acquitted the respondents Nos.1 to 4 under the provisions of section 249-A of the Code of Criminal Procedure, 1898.
2. Briefly, the facts leading to the appeal are that on her death, one Mst. Maryam Bibi wife of Jamal Din was survived by one son, namely Hidayat Ullah the respondent No,1 and three daughters namely; Rasheedan, Bashiran and Hameedan. Her estate consisted of about 140 acres of agricultural land, three houses and twelve shops. Allegedly, on the basis of a forged Hibbanama (gift deed) and by producing respondent No,4 in collusion with respondents Nos.2 and 3, the respondent got the entire land left behind by Mst. Maryam Bibi transferred in his name. This led to the registration of a case against these respondents by the appellant (the husband of aforesaid Mst. Rasheedan) under sections 468, 471, 419 and 420 of the Pakistan Penal Code vide F.I.R. No,162 of 1983, at Police Station Model Town, Gujranwala. The said case, however, on the report of the police, was cancelled upon which the appellant filed a complaint under sections 468, 471, 420 and 34, P.P.C., before the Illaqa Magistrate, Gujranawala.
3. After recording the preliminary evidence, the Trial Court by its order, dated the 21st June, 1967, summoned the respondent Nos.1 to 4 for trial. The respondents, on their appearance, moved an application under section 249-A, Cr.P.C., for their acquittal on the ground that they had been involved in a false case which for the same reason had earlier been got cancelled by the Police.
The learned Magistrate after hearing both the parties accepted the said application and by his order, dated 12th October, 1988, acquitted the respondents of the charge. Muhammad Siddiqui, the appellant, who is husband of Mst. Rasheedan a daughter of Mst. Maryam Bibi, deceased, thereupon moved a petition for special leave to appeal under section 417(2) of the Code of Criminal Procedure seeking permission to file appeal against the aforesaid order of acquittal. The requisite leave was accordingly allowed by order of this Court, dated 8-4-1989.
4. Side by side, daughters of Mst. Maryam Bibi brought a suit against respondent No,1 for annulment of transfer of the land in favour of Hidayat Ullah and his sons for recovery of possession thereof.
During the pendency of the suit on 8-3-1980 an application was moved on behalf of the plaintiffs that through the intervention of the relative of elders of the family, the matter stand resolved under a compromise and consequently suit may be filed and in case any of the party does not abide by the terms of compromise, the plaintiff shall have right to approach the Court. Accordingly, statements of the petitioners were recorded and on the basis whereof the suit was dismissed as having borne fruit.
5. Later, on 9-8-1982, the daughters brought another suit claiming that the opposite party had not adhered to the terms of compromise. During the pendency of the said suit the defendants made an application under Order VII, rule 11 of the Code of Civil Procedure praying for dismissal of suit on the ground that it was barred under Order XXIII, rule 1 of the said Code. This application was accepted by the learned Trial Court by its order, dated 25-4-1983 and thereby rejected the plaint.
An appeal against the said order was also dismissed by the learned District Judge, Gujranwala, by its order, dated 4-6-1984. A revision petition against the orders of the learned Trial Court and that of the District Judge was, however, accepted and the case was remanded to the Trial Court for decision of the suit in accordance with law after making the determination if the subsequent suit was based on fresh cause of action.
6. On remand the learned Trial Court came to the conclusion that the earlier suit was dismissed as having been withdrawn and no fresh cause of action had accrued to the petitioner/plaintiff.
Consequently, he again rejected the plaint under Order VII, rule 11, C.P.C. By his order, dated 28-6- 1984. The appeal against this order was also turned down by the learned District Judge. In revision though Court was of the view that the Courts below have not committed any material illegality or irregularity and accordingly maintained their judgments. A petition for leave to appeal moved against the order of the High Court was also dismissed by the Supreme Court.
7. In the light of the aforesaid decision of the Supreme Court as reported in 1996 SCMR 105, Mr. Faisal Zaman Khan, Advocate, the learned counsel for the respondents opposed the competency of the appeal claiming that the matter stands settled between the parties. He, however, conceded that in the said proceedings the issue involved was as to whether first suit having been withdrawn on the basis of a compromise effected between the parties, the second suit was maintainable for giving effect to the said compromise although no fresh cause of action had arisen to the plaintiff. On the other hand, in the present proceedings wherein the respondents were acquitted under section 249-A of the Code of Criminal Procedure the question involved is whether the respondents had committed a forgery, fraud or impersonation in executing a gift deed for transfer of land belonging to his mother in order to exclude her daughters inheriting any share in her estate and that whether the learned Trial Magistrate was justified in acquittal of the respondents from the said proceedings in a summary manner under section 249-A of the Code of Criminal Procedure. It was also admitted that both Civil and Criminal proceedings can proceed independently being two different and distinct proceedings.
8. The learned counsel for the respondents also objected to maintainability of the appeal on the ground of limitation. An application for special leave to appeal under subsection (2) of section 417 of the Code of Criminal Procedure can be filed within a period of 60 days from the order of acquittal. In the present case, the order of acquittal was passed on 12-10-1988. The application for supply of copy was moved on the same date 'and the copy was supplied to the appellant on 24-11- 1988. Initially, an appeal against the said order was filed before the Sessions Court on the 1st December, 1988, which was admitted for hearing on the 4th January, 1989. The same was, however, dismissed by the learned Additional Sessions Judge, by his order, date 14-2-1989, on the ground that the appeal against the order of acquittal in a complaint case should have been filed before the High Court under section 417(2), Cr.P.C. The appellant applied for copy of the said order on the same day. The copy was supplied to the appellant on 28-2-1989 whereafter on 15-3-1989, he moved this Court for special leave to appeal.
9. On the basis of an application for condonation of delay it was contended by Mr. Hasnat Ahmad Khan, Advocate, learned counsel for the appellant that the appeal before the Sessions Judge, Gujranwala, was filed by the appellant on the advice of his counsel and if the period spent in pursuing the appeal before the Sessions Court is deducted, the appeal before this Court is well within the period of limitation. He also contended that for the default of counsel, his client should not be made suffer. Opposing these contentions Mr. Faisal Zaman Khan, was of the view that ill advice of a lawyer in filing an appeal before a wrong forum is not a good ground for extension the time of limitation under the provisions of section 5 or 14 of the Limitation Act, 1908. In this respect, he relied upon Chief Administrator of Auqaf v. Muhammad Ramzan (PLD 1991 Supreme Court 102). The claim of the appellant, on the other hand, is that the wrong forum was selected by his counsel and that, since the appeal was initially entertained and admitted for hearing without any objection, he had no option but to pursue the appeal before the Sessions Court.
10. In M. Saleem Anjum v. Majid Nizami, and others (1990 M LD 206), where the facts are identical with the present case, the complainant had, after acquittal of the accused under section 249-A, Cr.P.C. Of the charge by the Trial Magistrate, preferred a revision petition before the Court of Sessions. The revision petition was dismissed on the ground that the same was not competent before the Court of Sessions as an appeal was maintainable under section 417(2), Cr.P.C. Before the High Court. The complainant thereupon moved the High Court where an objection was raised by the opposite party against the very maintainability of the petition on the ground of limitation. The High Court was, however, of the view that because the appellant had immediately filed the petition for special leave to appeal in the High Court after the decision of the Additional Sessions Judge and there was no carelessness on his part, the petition was within time if the period spent before the Court of Additional Sessions Judge is excluded.
11. The same is the position in the present case. The appellant had promptly applied for copy of the order of the learned Magistrate and on the receipt thereof an appeal was preferred before the Court of Sessions without any loss of time. It is also an admitted fact that the appeal was admitted for regular hearing by the learned Additional Sessions Judge, Gujranwala, within the prescribed period of limitation. In view thereof, there appears quite a force in the contentions of the appellant that under a bona fide mistake appeal was filed in the Court of Sessions on the advice of his counsel and that, since the appeal was admitted by the learned Additional Sessions Judge for hearing, it was, under a bona fide mistake, presumed that the Court of Sessions had the jurisdiction to hear such appeal. Even after rejection of the appeal by the learned Additional Sessions Judge on 14-2-1989, the appellant had promptly approached this Court after the receipt of the copy of the said order. Hence, relying upon Fazal Khan v. Ghulam Rabbani (PLD 1983 SC 262) accepting the plea of the appellant, the delay in filing special leave to appeal under section 417(2), Cr.P.C. Is condoned in accordance with the provisions of sections 5 and 14 of the Limitation Act, 1908.
12. As regards the order of acquittal, dated the 12th October 1988, passed by Magistrate 1st Class, Gujranwala, there appears no doubt that the learned Magistrate had, with unnecessary haste, concluded the trial under section 249-A, Cr.P.C. On 21-6-1987, it had been observed by his predecessor that there was sufficient material available against respondents Nos.1 to 4 to proceed against them under the provisions of sections 419, 420, 468 and 471, P.P.C. The respondents were, consequently, summoned for facing trial for the aforesaid offences. Admittedly, thereafter, no evidence was recorded nor any material was brought on the record for re-evaluation of the merits of the case. In absence of any fresh material on the record, the learned Magistrate (may be a different Magistrate than the one who had issued the summons against the respondents on the 21st June, 1987), could not arrive at a different conclusion and thereby acquitted the respondents.
As held in Saleem Anjum's case (supra), the High Court relying upon Malik Muhammad Ibrahim v.
The State (1985 PCr.LJ 929) (D.B.) had held that the trial Court could not pass the order of acquittal without bringing on record the fresh material as review is not permissible under the provisions of Code of Criminal Procedure. The similar view was taken in Muhammad Rafique v. Mst. Nasim Akhtar (1985 M LD 1048), where the Magistrate after summoning the accused in the complaint case had acquitted them under section 249-A of the said Code. It is, thus, clear that the learned Magistrate had acted mechanically and has acquitted the accused without bringing any fresh material on record.
13. In view of the above, the impugned order, dated 12-10-1988 is not C sustainable in the eye of law.
The same is, therefore, set aside and the case is remanded back for re-trial in accordance with law.