' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, is directed against the orders passed by the High Court on 13-3-1997 and 12-2-1999, whereby the accused-respondent Zulfiqar Ali Malik was acquitted of the charges levelled against him
2. The brief facts, giving rise to the present appeal, are that an F.I.R. Was lodged against accused- respondent, Zulfiqar Ali Malik, on 15-6-1991, at Police Station Islamgarh, Tehsil Mirpur, for allegedly various accounts of depositors at Habib Bank Ltd., Chakswari Branch. After necessary investigation the accused/respondent was forwarded to face his trial in the Court of Additional Sub- Judge/Magistrate 1st Class for allegedly committing offences under sections 471, 419, 420, 467 and 468, A.P.C. The learned Magistrate vide his order, dated 21-10-1996 acquitted the accused of the aforesaid offences' on the ground that prosecution failed to bring the guilt home to the accused.
Vide Government Notification No,68-460 of 1997, dated 29-1-1997 the Additional Advocate-General filed an acquittal appeal in the High Court on 16-2-1997. However, on 19-2-1997, he moved an application before the High Court for the withdrawal of appeal. The High Court acceding to the request of Additional Advocate-General passed an order for withdrawal of appeal but in the impugned order further observed on merits that the prosecution failed to prove the case against the accused person. Being aggrieved by the acquittal order of the accused, Habib Bank Ltd., the appellant herein, filed a revision petition in the High Court on 3-3-1997. Another application was moved on 16-12-1997 by the complainant-appellant that according to the provision of Ordinance IX of 1984, dated 23-2-1984 which has been adapted in Azad Jammu and Kashmir, the Additional Sub-Judge Magistrate 1st Class was not competent to hold trial and to acquit the accused.
According to the provisions of this Ordinance, the trial of the case was cognizable by a Banks (Special Court) constituted for the purpose. On the revision petition filed by the complainant- appellant Habib Bank Limited, the High Court vide its order, dated 12-2-1999, disallowed the same on the ground that the acquittal order passed by the trial Court was upheld by it vide order, dated March 13, 1997.
' The High Court observed that as the acquittal, order of the trial Court has merged into the order of the High Court, dated 13-3-1997, therefore, it held that it cannot entertain the revision petition against its own order. Hence this appeal.
3. It was vehemently contended by Kh. Ali Muhammad, the learned counsel for the appellant-Bank, that in the first instance the Additional Advocate-General was not competent to withdraw the appeal because under section 417 of Code. Of Criminal Procedure, it was only the public prosecutor who could lodge an acquittal appeal and the person who was also not competent to lodge the acquittal appeal was not 'competent to withdraw the same. The learned counsel further maintained that when on the application of Additional Advocate-General the High Court passed an order of withdrawal of appeal, it was not enjoined upon the High Court to discuss the merits of the case and to hold that the prosecution failed to bring the guilt home to the accused. The learned counsel also submitted that the Notification on the basis of which the Additional Advocate-General was authorised to withdraw the appeal could not have been legally issued by the Government. The learned counsel contended that the revision petition filed by the appellant- Bank in the High Court should not have been thrown out on the ground that since the acquittal order has been recorded in favour of accused-respondent by the trial Court and that order was upheld by the High Court vide its order, dated 13-3-1997, and the acquittal order having merged into order of the High Court, it was not competent to hear the revision petition. The learned counsel pointed out that in the application, dated 16-12-1997, moved by the appellant-Bank before the High Court, when the acquittal appeal was pending, it was specifically brought to the notice of the Court that because of bar provided in Ordinance No,IX of 1984, the Additional Sub-Judge/ Magistrate 1st Class was not competent to hold the trial but this application filed by the appellant-complainant was not disposed of in any manner. The learned counsel pressed into service the submission that as the provisions of the Ordinance of 1984 ousted the jurisdiction of trial Magistrate and provided a new forum for the offences mentioned in the Schedule, the High Court committed an illegality by not attending to the point of vital legal importance. The learned counsel also submitted that the question of jurisdiction could be challenged at any time before the High Court but the High Court failed to attend to a point which was going to the root of the case. The learned counsel strenuously argued that the accused-respondent having been acquitted by a Court of incompetent jurisdiction and its order being upheld by the High Court was a wrongful exercise of jurisdiction by the trial Court as well as the High Court.
4. Controverting the arguments raised by the learned counsel for the appellant, Mr. M. Riaz Tabassum, the learned counsel for respondent No,1, strenuously argued that against the order of withdrawal of appeal, the appellant, herein, did not file any appeal as such the same order has attained finality. The present appeal, according to the learned counsel, was not maintainable for the reason that the revision petition was filed against the order of acquittal.
5. Mr. M. Riaz Tabassum, the learned counsel for respondent No,1, submitted that the revision petition filed by the appellant-complainant in the High Court against the order of acquittal recorded by the trial Court was hopelessly time-barred as the same was filed on 3-3-1997. Similarly the petition for leave to appeal filed by the appellant-complainant in this Court against the orders of High Court, dated 13-3-1997 and 12-2-1997, was also time-barred as it was within the knowledge of the complainant-appellant that the Government was intending to withdraw the appeal. Thus, apprehending the withdrawal of appeal, the appellant filed a revision petition. The learned counsel pressed into service the submission that during the trial nowhere the objection was raised by the complainant-appellant that the trial Court was not vested with any jurisdictional competence to hold the trial and to record the evidence. The accused having been acquitted by the trial Court and the acquittal order upheld by the High Court, according to the learned counsel, has earned a right of double innocence in his favour. Thus, the acquittal order recorded by the trial Court and upheld by the High Court should not be normally interfered with by this Court. The learned counsel for respondent in support of his contentions cited the reported cases titled Muhammad Abdullah v.
Ghulam Hussain and 5 others 1992 PCr.LJ 1681 (Lahore)), Asim Iqbal v. President, Summary Military Court PLD 1978 Quetta 97 and Haji Wali Muhammad and another v. State and Haji Muhammad Rafique PLD 1978 Quetta 114 and contended that the appeal filed by the appellant may be dismissed. The learned counsel for the accused-respondent emphasised that the accused once having been tried and ultimately acquitted by the trial Court and the order of acquittal being upheld by the High Court, he could not have been vaxed twice for the same offences.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the record, we may in the first instance attend to the objection raised by the learned counsel for respondent No,1 that the revision petition filed by complainant in the High Court was hopelessly time-barred and as such the same was not maintainable. As it transpires from the record the revision petition on behalf of complainant-appellant was lodged in the High Court on 3-3-1997, against the acquittal order passed by the trial Magistrate on 21-10-1996, after a period of approximately four and a half months. The learned counsel for respondent No,1 has urged that the revision petition being hopelessly time-barred was liable to be dismissed. However, hi the circumstances of the case, we have to examine as to whether the revision petition lodged after about four and a half months against the acquittal order could be termed as hopelessly time- barred or not. The learned counsel for the appellant also contended that when the acquittal appeal was withdrawn by the Additional Advocate-General, and the High Court upheld the acquittal order on 13-3-1997, on obtaining the knowledge of acquittal order, the appellant filed revision petition in the High Court. So, at the most on 13-3-1997, the appellant had acquired the knowledge of the judgment of the High Court. The above contention of the learned counsel for the appellant is simply not tenable for the reason that the appellant filed revision petition against the order of acquittal recorded by the trial Magistrate on 21-10-1996, and on coming to know about the notification issued by the Government on 25-2-1997, filed a revision petition on 3-3-1997 wherein it was averred in para. No,14 of the revision petition that the complainant-appellant had, in. The circumstances of the case, no alternative except to file the revision petition. In para. No,16 of the revision petition it was also averred that in place of Additional Advocate-General a private counsel may be permitted to assist the Court and if the acquittal appeal already filed has been withdrawn by the Additional Advocate-General then this revision petition may be entertained and if some delay has occurred in filing of revision petition that may be condoned under the circumstances which had been explained in the revision petition. When the revision petition was filed on 3-3-1997, the acquittal appeal was still pending with the High Court. The High Court failed to decide the revision petition alongwith the acquittal appeal. This revision petition was disposed of on 12-2-1999.
Along with the revision petition the complainant-appellant filed an application on 13-3-1998, drawing the attention of the High Court to the effect that under section 4 of the Banks (Special Courts) Ordinance, 1984 the scheduled offences i,e,, 417, 467, 468, 419, 420, 471 shall be triable exclusively by a Special Court and it was also pointed out that the pending cases shall also stand transferred to the Special Court, but at the time of recording the order, dated 12-2-1999, the High Court failed to advert to the grounds taken in the separate application lodged by the complainant on 13-3-1998.
7. Even if it is admitted as correct that in the memorandum of revision petition the complainant/appellant admitted that the acquittal appeal filed by the Additional Advocate- General was apprehended to be withdrawn and the appellant-complainant acquired knowledge of the same on 25-2-1997, the revision petition filed by him on 3-3-1997, shall be deemed to be within time but the High Court never adverted to the above point.
8. It was contended by the learned counsel for the respondent that the appeal against the order passed by the High Court on 13th March, 1997 was time-barred. The said order of the High Court was passed when it was prayed by the Additional Advocate-General that he may be allowed to withdraw the acquittal appeal because the Government had withdrawn the notification by which sanction was granted to file acquittal appeal. The High Court allowed the appeal to be withdrawn on the ground that the prosecution had failed to prove any case against the accused-respondent: On learning that the Government had withdrawn the notification mentioned above Habib Bank filed revision petition. It is stated in para. 10 of the petition for leave to appeal filed in this Court that when the revision petition came up for hearing on 12th February, 1999 it was brought to the notice of the High Court by the learned counsel of the accused that the High Court had already acquitted the accused vide order, dated 13th March, 1997. It means that Habib Bank, which was not a party in the acquittal appeal, came to know on 12th February, 1999 that the High Court had acquitted the accused-respondent rather than allowing withdrawal of the appeal. It follows that 12th February, 1999 is the date of knowledge. So far as Habib Bank is concerned in our view the High Court fell in error in going into the merits of the case because the prayer made before the Court was that the appeal may be allowed to be withdrawn but the High Court discussed the merits of the case. Apart from that the High Court gave the verdict that case against the accused-respondent had net been proved in view of the "incoherence and contradictions appearing in the prosecution's case" but did not point out or discuss any incoherence and contradictions. Therefore, the order passed by the High Court on 13th March, 1997 is not sustainable.
9. We may also attend to another objection raised by the learned counsel for respondent No,1 that according to him an accused person having been tried once and acquitted would not be liable to be tried again for the same offence. Needless to point out that section 403, subsection (1) of the Code of Criminal Procedure reads as follows:-- "(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237."
The above subsection of the Code of Criminal Procedure embodies the maxim that no person could be twice disturbed for the same cause which means that no one shall be punished or put in peril twice for the same matter but the prerequisite is that a person who has been tried once should have been tried by a Court of competent jurisdiction and in case of conviction or acquittal he shall not be liable to be tried again for the same offence. The bare reading of section postulates that the Court trying the accused should be a Court of competent jurisdiction but in the instant case the learned trial Magistrate 1st Class, Mirpur being not competent to try the accused- respondent in the scheduled offences, his acquittal order recorded in favour of accused and upheld by the High Court shall not exonerate him to be tried by a Court of competent jurisdiction.
10. In Pakistan Ordinance IX of 1984 Offences in Respect of Banks (Special Courts) Ordinance, 1984 was promulgated on 23-2-1984. The aforesaid Ordinance was adapted in Azad Jammu and Kashmir on 29th July, 1984, vide Act No,I of 1984. The relevant section 2 of the adaptation law reads as follows:-- "2. Adaptation of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984).---
(1) The Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984), and all rules, notification and orders made or issued thereunder and in force in Pakistan immediately before the commencement of this Act are adapted and shall as far as practicable, be in force in Azad Jammu and Kashmir subject to the modifications stated below-- ' (a) reference to ' Federal Government' shall be read as reference to ' Azad Jammu and Kashmir Council' ;
(b) reference to the High Court and Supreme Court shall be read as a reference to the High Court and Supreme Court of Azad Jammu and Kashmir, respectively."
11. Section 4 of the Ordinance known as Offences in Respect of Banks (Special Courts) Ordinance, 1984 is reproduced below:-- "4. Scheduled offences to be tried by Special Court.--- (1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court."
12. Similarly subsection (3) of section 4 of the above Ordinance is coached in a following manner:- "(3) All cases relating to a scheduled offence pending in any Court other than a Special Court immediately before the commencement of this Ordinance shall, on such commencement, stand transferred to the Special Court having jurisdiction over such cases."
Subsection (4) of section 4 of the above Ordinance may also be reproduced which reads as follows:-- "(4) Whenever an offence is included in the First Schedule under subsection (2) all cases relating to the offence pending in any Court other than a Special Court immediately before such inclusion shall stand transferred to the Special Court having jurisdiction over such cases."
13. The above-stated Ordinance having been adapted in Azad Jammu and Kashmir and keeping in view the schedule, the offences under sections 419, 420, 467, 468 and 471, A.P.C. Were triable by the Special Court constituted under the aforementioned Ordinance promulgated in Pakistan in 1984 and which was later on adapted in Azad Jammu and Kashmir. A further Act was enacted by Azad Jammu and Kashmir Council validating the adaptation of Laws in 1995, as per Item 34 of the Council Act III of 1995. After the enforcement of the said law, the Additional Sub-Judge/ Magistrate 1st Class Mirpur had no jurisdiction in the matter as the order of acquittal could only be recorded by a Court which under law was competent to try the same. The question of ouster of jurisdiction was brought to the notice of High Court by submitting a separate application on behalf of complainant-appellant on 13-3-1998, but the High Court failed to advert to the aforestated point of vital importance while passing the impugned order, dated 13-3-1997. Therefore, in our view the High Court committed a patent illegality by passing the impugned orders, dated 12-2-1999 and 13-3- 1997.
14. The authorities cited by the learned counsel for respondent No,1 being irrelevant to the proposition in hand need not be discussed as they relate distinctly to a different proposition.
15. Thus, for the aforestated reasons, by setting aside the impugned orders passed by the High Court on 12-2-1999 and 13-3-1997 and that of the trial Court, dated 21-10-1996, and by accepting the appeal, we remand the case to the Banks (Special Courts), Mirpur to try the accused- respondent and to proceed with the case afresh in accordance with law.