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Criminal Appeal No. 41 of 1960, decided on 5th December, 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 12th October 1959, in Criminal appeal No. 32 of 1959).

-Special Judge appointed under S. 4 (3), Act (XIX of 1948)-Competent to try case under Act (XL of 1958) if he satisfies either of two alternative qualifications laid down in S. 3 (2).

M. Naqi Chaudhri Advocate Supreme Court, instructed by Ijaz Ahmad Khan Attorney for Appellant.

Fazal Elahee Advocate Supreme Court, instructed by Ijaz Ali Attorney for Respondent.

Date of hearing : 5th December 1960.

-The appellant, Abdul Latif, received a sentence of three years' rigorous imprisonment under-section 165-A of the Pakistan Penal Code, read with section 5 (2) of the Prevention of Corruption Act, 1947, by order of a Special Judge. On appeal, the High Court of West Pakistan maintained the conviction under section 165-A, Pakistan Penal Code, alone and reduced the sentence to two years' rigorous imprisonment. Special leave to appeal was granted in this case as it was contended that the learned Special Judge had no jurisdiction to try this case under the Pakistan Criminal Law (Amendment) Act, 1958.

The trial Judge in the instant case was Mr. Qadir Bakhsh, a member of the Provincial Civil Service, who had been appointed a Special Judge, by a notification issued in 1954 under the provisions of the Pakistan Criminal Law (Amendment) Act, 1948, as amended from time to time. That Act was repealed by section 14 of the Pakistan Criminal Law (Amendment) Act, 1958, which came into force on the 23rd of September 1958.

In the old Act, the qualifications for Special Judges were provided for in subsection (3) of section 4 which was in the following terms :-

"Any person, not being a person, who has at any time been removed or dismissed from Government service, or who has retired from such service, shall be qualified for appointment as a Special Judge if he is or has been a Sessions Judge, or an Additional Sessions Judge, or Assistant Sessions Judge, or a District Magistrate, or an Additional District Magistrate."

It is not denied that at the time of the notification, issued in 1954, Mr. Qadir Bakhsh had the necessary qualification of being an Additional District Magistrate, as required by this enactment. In the new Act of 1958, however, the qualifications necessary for a Special Judge were altered. The relevant provision was contained in, subsection (2) of section 3 of the new Act which is reproduced below:-

" (2) No person shall be appointed a Special Judge unless he-

(a) is qualified under Article 167 of the Constitution for appointment as Judge of a High Court ; or

(b) has, for a period of not less than three years' exercised, whether continuously or not, the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, or of a District Magistrate or an Additional District Magistrate."

The 1958 Act, while repealing the old Act of 1948, saved all action taken under the latter Act, by subsection (2) of section 14, which is in these terms :-

" (2) Anything done or action taken before the commencement of this Act during any trial or proceedings before a Special Judge, or otherwise, under the aforesaid Act shall be deemed to have been done or taken under this Act as if this Act were in force at the time such thing was done or action taken."

The occurrence which was the subject-matter of the trial in this case, happened on the 12th of December, 1955. For some reason, which is difficult to understand, the sanction for the prosecution was not obtained till the 31st of December 1956. The case was actually put in Court about two years latter, on the 18th October, 1958. Proceedings started before Mr. Qadir Bakhsh on the 22nd October, 1958. Evidence in the case was recorded between the 1st of December 1958 and the 19th December 1958, judgment being delivered on the 31st of December, 1958.

Mr. Qadir Bakhsh's powers as a Special Judge under the new Act were notified on the 18th November, 1959. Till that date, it is contended, he was not validly acting as a Special Judge under the new Act, despite the saving clause embodied in subsection (2) of section 14 of the new Act. It is conceded that a notification, appointing him a Special Judge under the old Act had been issued in 1954, but it is suggested that in view of the different qualifications required of a Special Judge under the 1958 Act, the old notification, gazetting Mr. Qadir Bakhsh as a Special Judge, could not be pressed into service for giving him the necessary jurisdiction under the new Act. The argument is founded on the allegation that Mr. Qadir Bakhsh had not exercised the powers of an Additional District

Magistrate for three years as required by clause (b) of subsection (2) of section 3 of the 1958 Act.

Unfortunately, this point had not been raised in the Courts below and no material, therefore, exists on the record as Act the period of time during which Mr. Qadir Bakhsh may have exercised such powers. But the case can be decided on the basis of clause (a) of subsection (2) of section 3 of the 1958 Act. We have verified from the Civil List for 1955 that Mr. Qadir Bakhsh became a permanent E. A. C. on the 15th August 1947. By the time, therefore, that he took up the present case for trial, he had put in more than ten years as a Magistrate which must be regarded as a "judicial office" within the meaning of Article 167 of the late Constitution. Under clause (c) of that Article, consequently, the learned Special Judge must be held to be qualified for appointment as a Judge of a High Court and he thus satisfied the first alternative out of the qualifications laid down in subsection (2) of section 3 of the new Act. It follows that the previous notification, appointing him a Special Judge, must be deemed to have been in force under the new Act, by virtue of subsection (2) of section 14, read with subsection (2) (a) of section 3 of the Act. It could not be said that his previous appointment under the old Act would in any way be repugnant to the provisions of the new Act, in these circumstances. The principle embodied in section 24 of the General Clauses Act, 1897, fully covers such a case, even apart from the provisions of subsection (2) of section 14 of the 1958 Act. On this view, therefore, the competency of Mr. Qadir Bakhsh to try the appellant on the date that he did, could not be successfully challenged.

It has already been indicated in the order, granting special leave, that on the merits of the case, no question other than one of appreciation of evidence arises and that would furnish no ground for interference by this Court, with the orders passed by the Courts below. We dismiss the appeal. The appellant will surrender to his bail to serve out the remainder of his sentence.

K. B. A.

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