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Criminal Miscellaneous No. 2890 of 1963, decided on 13th April 1964.

Jurisdiction of other Courts and Tribunals ousted only in respect of adjudication upon question whether person or property be evacuee or not or what right, if any, evacuee had in such property‑Question whether particular document (.sale deed) presented before Custodian was genuine or not or whether any offence committed in relation thereto‑Not question solely within competence of Custodian‑Finding of Custodian that sale deed appeared to be genuine‑Not conclusive for determining whether any criminal offence committed in relation to such sale deed Jurisdiction of criminal Court, in such case, not barred.

Muhammad Rashid Chughtai for Petitioner.

Khalid Mahmood Pasha for the State.

Date of hearing : 13th April 1964.

This is a petition under section 561‑A of the Criminal Procedure Code by Hafiz Muhammad Siddique, for quashing criminal proceedings under sections 420/109, 468 and 471 of the Pakistan Penal Code, pending against him in the Court of Mr. M. R. Khalid, Railway Magistrate, Ist Class, at Multan. It is stated in the petition that the case has been initiated against the petitioner on a complaint made by the District Magistrate of Multan, in connection with the alleged forgery of a registered sale deed dated the 2nd of November 1946, purporting to have been executed in favour of the petitioner by a non‑Muslim Pandit Charan Dass son of Pandit Jesa Ram, in respect of a house, measuring two marlas In area, situate in Tulamba Town in the Multan District. The petitioner had made an application to the Deputy Custodian, Multan, for a declaration that the house in question was not evacuee property. It appears that the necessary declaration was granted by the Deputy Custodian. An application was moved by one Khuda Bakhsh before the Deputy Custodian. Multan, complaining that the property was an evacuee property and the sale deed presented by the petitioner in support of his claim was forged. However, no action was taker by the Deputy Custodian on that application. Khuda Bukhsh then made another application to the District Magistrate, Multan. repeating the same allegations against the petitioner, and the District Magistrate referred the case to the Custodian. The learned Custodian upheld the order of the Deputy Custodian and remarked that the sale deed in question was a registered document and appeared to him to be genuine. He further observed that it was waste of time to take any proceedings against the petitioner in this connection.

2. However, the District Magistrate, Multan, ordered the registration of the case on the basis of the complaint submitted by Khuda Bakhsh, and certain enquiries carried out by the Treasury Officer‑cum‑Joint Registrar in connection with that ,=,tiicat ,:, The police has now submitted a challan in the Court of Mr. M. R. Khalid, Railway Magistrate, Multan.

3. It is contended on behalf of the petitioner that the jurisdic tion of the criminal Courts is barred by section 41 of the Pakistan Administration of Evacuee Property Act (Act XII of 1957) ; that the findings of the Custodian are conclusive on the question of the genuineness of the sale deed dated the 2nd of November 1946 ; and that the criminal case is in fact due to the enmity of one Abdul Hakim who is working as a reader to the District Magistrate, Multan, and with whom the petitioner had a dispute about the lease of certain land. It is finally submitted that, in any case, it is clear from the circumstances of the prosecution that it amounts to an abuse of the process of the Court.

Section 41 of the Pakistan Administration of Evacuee Property Act (Act XII of 1957) runs as follows :‑

(1) Save as expressly provided in this Act no Civil or Revenue Court or any other authority shall have jurisdiction

(a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property.

(b) to question the legality of anything done under this Act by or at the instance of the Custodian, or

(c) in respect of any matter which the Custodian is em powered by or under this Act to determine.

(2). whenever any question such as is referred to in clause (a) of subsection (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.

(3) No decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March 1947, and the fifteenth day of October 1949, shall be binding on the Custodian or affect any right or interest of an evacuee in any property affected by such decision, decree or order unless it is accepted or approved by the Custodian.

(4) No Court or other authority shall be competent to grant an injunction or other order in relation to any proceeding before the Custodian under this Act, or anything done or intended to be done by or at the instance of the Custodian under this Act.

(5) Nothing in the foregoing subsection shall prevent the adjudication by a civil Court of a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval.

5. It will be seen that the jurisdiction of the Civil or Revenue Court is ousted only in the matter of entertaining or adjudicating upon any question as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property. Moreover, the ordinary Courts are not permitted to question the legality of anything done under the Act by or at the instance of the Custodian, or in respect of any matter which the Custodian is empowered by or under this Act to determine. Now, in the present case, the question whether a particular document is forged or not, or whether any offence has been committed in relation thereto is not a question covered by any of the provisions of the Act. Nor is it a question, which is required to be determined by the Custodian under the provisions of Act (XII of 1957). The question before the criminal Court in the present instance is not about the evacuee nature of the property which is mentioned in the sale deed. It seems to me 'therefore that the bar of jurisdiction contained in section 41 of Act XII of 1957 does not come into play in the instant case.

6. There is no doubt that the learned Custodian has observed that the registered sale deed appears to him to be genuine but that finding cannot be regarded as conclusive in law for the purpose of determining whether any criminal offence has been committed in relation to the sale deed in question. I find that the District Magistrate, Multan, has relied upon the report of the Treasury Officer‑cum‑Joint Registrar to the effect that although there is an endorsement on the sale deed, produced by the petitioner, to the effect that it had been copied on certain pages of the register maintained in the Registration Office yet no such document appears on the pages mentioned in the endorse ment. This circumstance has not been taken into account by the learned Custodian, but appears to have an important bearing on the question whether the sale deed is genuine or not. It is clear to me that as far as the question of the commission of a criminal offence in relation to this document is concerned, that is a matter which must be decided by a criminal Court of competent jurisdiction.

7. As regards the contention that the present case has been launched against the petitioner at the instance of Kh. Abdul Hakim, reader to the District Magistrate, Multan, it is enough to say that there is no reason to hold that the trial Court would be influenced in any way by the fact that the petitioner is not on friendly terms with the said reader. If at any stage it should appear to the petitioner that the trial is not being conducted fairly due to the influence of the said Kh. Abdul Hakim, it would be open to the petitioner to move for the transfer of the case.

8. For the reasons given above, I am of the view that this is not a case where the proceedings are barred by any statute or where the circumstances are such as to indicate that the proceedings amount to an abuse of the process of the Court.

9. The result is that the petition fails and is hereby dismissed.

K. B. A.

Petition dismissed.

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