MUHAMMAD SHARIF Versus THE STATE

Muhammad Sharif (appellant-accused) while posted as Patwari Halqa Kot Pindi Das, Tehsil Ferozewala, District Gujranwala, by abusing his official position, purchased agricultural land measuring 229 Kanals, 18 Marlas of the value of Rs.31,000 in village Jandrata in the name of his wife Mst. Anis Akhtar. He also installed a tube-well. His assets were allegedly disproportionate to his known sources of income. This transpired during investigation conducted on the basis of a complaint (Exh.P.W.2/1) made by Muhammad Hayat regarding purchase of 22 Acres of land for a sum of Rs.25,000 by the said accused in the name of his wife Mst. Amin Akhtar without sanction/permission of the competent authority.

2. After the conclusion of the trial Mr. M. Anwar Shariq, the then Senior Special Judge, Anti-Corruption, Punjab, Lahore, vide judgment, dated 26-6-1980 convicted Muhammad Sharif appellant-accused under section 5(2)47, P.C.A. and sentenced him to 3 years R.I. and ordered forfeiture of the said land to the Provincial Government.

3. The learned counsel for the appellant at the very outset referred to the case of Mahmoodul Hassan v. The State 1984 PCr.LJ 1107 and submitted that Mr. M. Anwar Shariq was incompetent to hold the office of Special Judge, Anti -Corruption, and, therefore, he had no jurisdiction to try the appellant's case. In this regard para. II of the said judgment is most relevant, which is reproduced as under:

"The upshot of the above discussion is that Mr. Muhammad Anwar Sharif, Special Judge, Punjab, having previously been prematurely retired for a cause under para. 3 of the Removal from Service (Special Provisions) Regulation, 114 of 1972, the said premature retirement amounted to removal from service effected at the instance of the Government, as contemplated in section 3(2)(b), and despite the fact that he was re-instated later, the very event of his having been removed earlier disentitled hint to be appointed as a Special Judge thereafter. The said Special Judge was, therefore, incompetent to hold the office and he had, therefore, no jurisdiction to try the appellant's case. "

4. The learned counsel for the State did not dispute this contention and very frankly admitted that the learned trial Judge was not competent to hold the office in view of the judicial verdict of the Lahore High Court.

5. Respectfully following the reasons and the findings given in the case of Mahmoodul Hassan, I hold that the case of the appellant was tried by the Special Judge who was incompetent to hold the office. Hence, the trial of the appellant was-without jurisdiction and as such null and void.

6. In view of the above, this appeal is accepted and the conviction and sentence of Muhammad Sharif appellant is set aside.

7. In the peculiar circumstances of the case, I do not feel that a retrial is desirable. The appellant had allegedly purchased land worth Rs.31,000 only. The case was registered on 3-2-1976 and thus the appellant has suffered the agony of the trial and thereafter, constant pressure of the pendency of the appeal for over 21 years. The retrial would be unfair. The appellant is on bail. The bail bond is discharged.

N.H.Q./M-403/L Appeal accepted.