SHEIKH LIAQUAT HUSSAIN Versus THE STATE

1. In this Criminal Miscellaneous, Application under section 561-A, Cr.P.C. the appellant has challenged the order, dated 2-7-1996 passed by the learned IInd Additional District Judge, Karachi (Central). Since the points raised in the application required further consideration it was admitted and by consent both the learned counsel submitted their arguments on merits for final disposal. The brief background of the matter is as follows:

2. Applicant Sheikh Liaquat Hussain is President of Khidmat-e-Khalq Committee, Karachi Central. According to him this Committee is a society working for the welfare of people and accepts donations voluntarily donated by people and also receives hides and skins on the eve of Eid-ul-Azha. On 12-5-1996 about 6 to 8 persons entered into the office of Khidmat-e-Khalq Committee and after overpowering the Chowkidar and other office-bearers, caused damage to furniture and other items lying in the office. The culprits also allegedly set on fire the ambulances and corpse carriers as well as hides and skins. Regarding this incident F. I. R. No.150/1996 was lodged by one Imtiazul Haq at Police Station Jauharabad. During investigation S.H.O., Jauharabad visited the place of incident and found huge quantities of hides and skins of sacrificial animals lying in the office of Khidmat-e-Khalq Committee but in his report he alleged that the hides and skins of such a huge quantity appeared to be stolen and no permission in writing was taken by the applicant to collect them. He also suspected that unknown miscreants/assailants indulged in the above alleged incident to destroy the hides and skins. The S.H.O. then seized the entire quantity of hides and skins under section 550, Cr.P.C. and requested the S.D.M. to seal the premises. Accordingly, the learned A.C./S.D.M:, Liaquatabad, Karachi Central passed the order which allegedly was biased, motivated with malice and in access of jurisdiction.

3. It would be relevant to observe that Muhammad Arif Khan, Joint Secretary, Khidmat-e-Khalq Committee, Karachi Central submitted application No.223/1996 under section 516-A, Cr.P.C. before the learned Sessions Judge, Karachi Central wherein he prayed that hides and skins seized by the S.H.O., Jauharabad may be allowed to be removed/shifted and the orders passed by the S.D.M. may be set aside. It was further prayed that the S.H.O., Jauharabad may be directed not to create any impediment in the removal/shitting process. The learned Sessions Judge, Karachi Central vide his order, dated 29-5-1996 dismissed the application by observing that the Sessions Court was not competent to exercise power under section 523, Cr.P.C. as these powers are vested in the concerned Magistrate who alone could pass appropriate orders in respect of delivery 'of hides and skins to the persons entitled to their custody and/or disposal thereof. The learned Sessions Judge also directed the learned Magistrate to pass an order under section 523, Cr.P.C. Thereafter, the applicant submitted an application under section 523(2), Cr.P.C. before the learned A.C./S.D.M., Liaquatabad, Karachi Central for return of hides and skins on Superdiginama which were seized by the S.H.O., Jauharabad, Karachi Central. This application was dismissed on 19th June, 1996. It was further directed that the S.H.O., Jauharabad Police Station and his superior Police Officers should remain vigilant for compliance of the order passed by the District Magistrate, Karachi Central under section 144, Cr.P.C. It would be relevant to reproduce the following paragraph from the said order:--

4. "Therefore, the ground advanced by the applicant in his application that the seizure of hides and skins by the S.H.O., Jauharabad Police Station is not within the scope of section 550, Cr.P.C. is incorrect. Because the facts circumstances mentioned above create sufficient suspicion of the commission of the offence under section 188, P.P.C, were and are present i.e. collection of hides and skins. Ground No.2 of the applicant that the hides and skins is property of Khidmat-e-Khalq Committee is incorrect (sic) the applicant as discussed above has violated section 550, Cr.P.C. and has thereby committed an offence under section 188, P.P.C. and is an offender of law.

5. Ground No.3 is not worth consideration as position of the hides and skins cannot be handed over to applicant who has violated the law and now intends to derive from it.

6. Ground No.4, is considered to the extent that there is imminent danger of spread of epidemic disease due to the rotting of the hides and skins and monsoon season has already set in and those hides and skins are prone to speedy and natural decay. Therefore, Court finds it fit that District Health Officer, K.M.C., Karachi Central should take those hides and skins into possession from the premises and dispose them at a garbage dump located far away from the residential area where they are presently heaped.

7. Ground 5, also not worth consideration as the collection by applicant/Khidmat-e-Khalq Committee has been an offence. The S.H.O., Jauharabad Police Station is directed to assist in handing over and delivery to the District Health Officer, K.M.C., Karachi Central, for disposal of hides and skins at garbage dump.

8. In view of the above discussion, I find no merit in the application under section 523(2), Cr.P.C. of the applicant Khidmat-e-Khalq Committee and the same stands dismissed with the direction to D.H.O., K.M.C., Karachi Central for removal/disposal of these hides and skins at a garbage dump, as there is an imminent threat of break of epidemic disease, as the rotting of these hides and skins due to the on set of mon?soon season has already started. The S.H.O., Jauharabad Police Station and his superior Police Officers are ordered to remain vigilant in observance and compliance of D.M.'s order under section 144, Cr.P.C. whose implementation has led to violation of law and danger to health of the citizens of Block 14, F.B. Area. The S.H.O., Jauharabad is further directed to assist D.H.O., K.M.C Central for removal and disposal of hides and skins when he undertakes the said exercise."

9. The Prosecuting Sub-Inspector had submitted statement on 17-6-1996 before the learned Magistrate wherein, inter alia, regarding the alleged theft of hides and skins he submitted as follows before passing of the above order:

10. "(1) ????? That as per report, dated 12-5-1996 S.H.O., Jauharabad, a huge quantity of skins and hides were seized by the area police lying in the compound of the office of Khidmat-e-Khalq Committee on the suspicion that the said skins and hides are the stolen property.

(2) ??????? That no F.I.R. has been lodged regarding the theft of the said skins and hides.

(3) ??????? That at present no other claimant is in existence."

11. On 23-6-1996 the applicant challenged the order, dated 19-6-1996 in Criminal Revision No.12 of 1996. During the pendency of this revision before the learned IInd Additional District Judge the learned S.D.M., Liaquatabad. Karachi (Central) passed yet another order on 23rd June. 1990 which read, as under:--

12. "Application moved by S.H.O./S.I., Jauharabad under section 550, Cr.P.C. regarding desealing and disposal of hides and skins, as these are case property as per report of Investigating Officers in F.I.Rs. Nos.202/96, 110/96 and 235/96.

13. In view of the reports of Investigating Officers there is sufficient material on record to prove that these hides and skins are case property in the abovementioned F.I.Rs. Hence the hides and skins are not to be handed over to District Health Officer (Central) K.M.C. as per order of this Court dated 19-6-1996 and Investigating Officers are directed to approach the competent trial Court for custody of these hides and skins as per law.

14. After passing of the above order by the learned S.D.M. the learned IInd Additional District Judge, Karachi Central dismissed the Criminal Revision vide' judgment, dated 2nd July, 1996. It would be relevant to reproduce para. 4 of the, said judgment:

15. "During the course of arguments it was suggested by the Court to learned counsel for the petitioner that the S.D.M., Liaquatabad has recalled his order of destruction of the hides and skins probably in exercise of the powers under section 21 of the General Clauses Act, 1897, hence the impugned order appears to have ceased to exist hence what order he wants from this Court. Learned counsel for the applicant insisted that his Constitutional rights have been violated as he has not been heard by S.D.M. while passing order, dated, 23-6-1996. This Court is not empowered to exercise any power under the Constitution. In my opinion, by order, dated 23-6-1996 learned S.D.M. cancelled his order of destruction of the hides and skins passed on 19-6-1996 in exercise of the powers under section 21 of the General Clauses Act, 1897, hence the revision application has become infructuous. Even otherwise since it has been brought to the notice of this Court that it is stolen property in three cases of Harrabah of three different police stations, hence the hides and skins cannot be ordered to be delivered to the applicant in this revision application. As a result of the above discussion the revision application is dismissed."

16. I have heard Mr. Sardar Muhammad Ishaque learned counsel for the applicant and Mr. K.M. Nadeem learned A.A.-G. for State and also perused the record.

17. Learned counsel for the appellant submitted that while passing the order, dated 19-6-1996, the learned Magistrate ignored the report, dated 17-6-1996 'submitted by the Prosecuting Sub-Inspector and even otherwise this order was passed in violation of the principle of natural justice. Regarding the order, dated 19-6-1996 he relied on the following para of the revision application:--

18. "That the learned A.C. and S.D.M., Liaquatabad, Karachi Central while passing the impugned order, dated 19-6-1996 was under the influence of the Government of Sindh. That the impugned order was motivated with malice, tainted, palpably erroneous and excess, of jurisdiction and to crown all to sabotage and frustrate the order of Sessions Judge, Karachi Central which was expected against the impugned order, dated 19-6-1996, that the A.C. and S.D.M. passed another order, dated 23-6-1996 which is the glaring and classic example of political victimisation of the M.Q.M. and further the same was engineered on mala fide intention and ulterior motive to harass, humiliate the M.Q.M. to deprive from the lawful and legal custody of hides and skins."

19. Lastly he submitted that Khidmat-e-Khalq Committee is the only party entitled to the restoration of hides and skins but the learned S.D.M. had misinterpreted the law and passed the impugned order which has resulted in miscarriage of justice.

20. Learned A.A.-G. submitted that the learned Magistrate was competent to pass the order, dated 23-6-1996 by invoking the provision of section 21 of the General Clauses Act. He further submitted that the seized hides and skins are case properties of F.I.Rs. No.110/96 (Police Station Khawaja Ajmer Nagri), F.I.R. No.202/96 (Police Station Gulbahar) F.I.R. No.235/96 (Police Station New Karachi). 1n the parawise comments of the respondent it is alleged inter alia as follows:--

21. "On 20-6-1996, S.H.O., Khawaja Ajmer Nagri, S.H.O. New Karachi and S.H.O., Gulbahar Police Station informed through official letters that the cases vide F.I.R. No.110/96 under section 17(3), E.H.O. regarding robbed of 335 skins, F.I.R. No.235/96 under section 17(3) E.H.O. regarding robbed of 13,500 hides/skins and F.I.R. No.202/96 under section 17(3), E.H.O. regarding of 5,530 hides/skins are registered at Khawaja Ajmer Nagri, New Karachi and Gulbahar Police Station subsequently against terrorists of M.Q.M. (Altaf Group), who after snatching these hides/skins have stored at Khidmat-e-Khalq Committee Office, F.B. Area, Karachi. These are the case properties of the cases stated above. "

22. In the first instance the crucial question is whether the learned Magistrate was legally competent to review/modify his order dated 19-6-1996 which was subject-matter of Criminal Revision No. 12 of 1996, pending on the file of learned IInd Additional Sessions Judge, Karachi Central by passing the order, dated 23-6-1996 under section 21 of the General Clauses Act. It will at this stage, be useful to reproduce section 21 of the said Act:--

23. "21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws .-- - Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."

24. The word "orders" has been used alongwith the words "notifications, rules, and bye-laws", and will thus be interpreted ejusdem generis, meaning thereby that it will betaken to be in the sense of an order issued by the Legislature or the Executive. Moreover, as a rule of construction the words used I in a statute must be construed according to their context and as such other G provisions in that statute would be very much relevant. Section 21 should, therefore, be read in the light of sections 14 to 20 and sections 2"2 to 24 and then' it will be clear that the word "order" in that section refers to Legislative or l H Executive orders an6 not a judicial order. I am fortified in my opinion by a Full Bench decision of Nagpur High Court reported as Venkatesh Yashwant Deshpande v. Emperor AIR 1938 Nag. 513. I will reproduce with advantage the following observations in this judgment:--

25. "The meaning of the word 'orders' becomes clear when section 21 is read in conjunction with section 24. These considerations make it clear that the word 'order' used in section 21, General Clauses Act, is a legislative or statutory order, that is an order having the force of law. The order passed under section 401 granting remission of punishment falls in a category different from the order contemplated in section 21, General Clauses Act. The applicability of that section is, therefore, highly doubtful. "

26. A learned Single Judge of the Lahore High Court also took the view that section 21 of the General Clauses Act could not be pressed into service in relation to orders passed in a judicial capacity. Reference in this connection may be made to the case of Muhammad Ibrahim and 2 others v. Municipal Committee, Chiniot through its Chairman 1990 ALD 655. Section 4(m) of the Cr.P.C. defines "judicial proceedings", to include any proceedings in the course of which evidence is or may be legally taken on oath. The term 'judicial proceeding' as used in section 4(m) does not give an exhaustive import and accordingly the statutory definition has a wider connotation than expressed in section 4(m). It is in view of this that a Full Bench of the Honourable Supreme Court while examining powers in appellate jurisdiction in Muhammad Saeed v. Election Petition Tribunal (West Pakistan) and others PLD 1957 SC (Pak.) 91 further expanded the term judicial proceedings to, inter alia, any adjudication concerning determination of rights and liabilities between parties inter se. Subsequently a similar view was expressed by another Full Bench of the Honourable Supreme Court in Farid ' Sons and another v. Government of Pakistan and others PLD 1961 SC 537 (at p 557(J)). Thus in my view a Magistrate exercising powers under section 523 read with section 550, Cr.P.C. does so judicially as not only he determines the I rights and liabilities between parties but the nature of proceedings are such which may require recording of evidence on oath. (For further support of this proposition see Ma Thein Nu v. Ma The Hnit AIR 1920 Lower Burma 36 and Sagolsem Bahu Singh v. Thaiam Mani Singh and others AIR 1959 Manipur 38 wherein it has been held that a Magistrate under section 523, Cr.P.C. has to exercise his discretion judicially. This leaves no doubt that such proceedings are of judicial character). Accordingly the order, dated 19-6-1996 which was, modified/reviewed as a judicial order and in view of what has been held above, section 21 of the General Clauses Act would not enable the learned Magistrate to review that order. Moreover, there is no other provision of law under which the learned Magistrate could have exercised the power of review. It is settled law that power of review must be specifically conferred by statute and in the instant K available (see Hussain Bakhsh v. Settlement ? case no such power was ava Commissioner, Rawalpindi and others PLD 1970 SC 1, Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94, Muhammad Siddique and others v. District Magistrate, Tharparkar and others 1985 CLC 2885, Ghulam Muhammad v. Director-General, Pakistan Rangers Headquarters, Lahore 1989 SCMR 288(1) and Messrs Middle East Bank Ltd. v. Zubair Ahmed Khan Afghani 1990 MLD 909. The learned Magistrate was thus not competent to modify or review his earlier order. Moreover, it is also an admitted position that revision application against the order, dated 19-6-1996, was already pending. Even if it is conceded that any review was possible due to new facts allegedly appearing on the surface, the learned Magistrate should have issued a notice to the applicant namely `Khidmat-e-Khalq Committee which was an interested party before recalling/ reviewing that order. This having not been done, the order, dated 23-6-1996 was also violative of the principles of natural justice and cannot be sustained on that ground also. Reference may be made to a Full Bench judgment of the Honourable Supreme Court, reported as Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232.

27. The revision application is, therefore, allowed. The order of the learned Magistrate, dated 23-6-1996 is set aside. With the result, the Revision Application No. 12 of 1996 before the learned 1lnd Additional District Judge, Karachi Central becomes, pending and has to be disposed of on merits. However, I find that the learned IInd Additional District Judge, Karachi Central who disposed of the revision application on 2nd July, 1996 made observations that the property in question was the case property in three F.I.Rs. Such observations were uncalled for after he had come to the conclusion that the revision application had become infructuous. In this view of the matter it would be proper that in the interest of justice the Revision Application No. 12 of 1996 should be heard afresh either by the learned Sessions Judge, Karachi Central or be assigned to any learned Additional Sessions Judge, Karachi Central other than the learned IInd Additional Sessions Judge for disposal according to law. Looking to the nature of the property it is further ordered that the learned trial Court should dispose of the matter expeditiously preferably within one month.

28. N.H.Q./L-4/K ?

29. Revision allowed.