IFTIKHAR HUSSAIN and others vs GOVERNMENT OF PAKISTAN and others

' MALIK MUHAMMAD QAYYUM, J.--- Mr. Tajjammal Hussain, a former Chairman/Managing Director of the Bank of Punjab and his son Iftikhar Hussain have come in appeal against the judgment and order of a learned single Judge of this Court dated 8-10-1995 dismissing Writ Petition No,12687 of 1995 filed by appellant No,1 in which he had inter alia sought quashment of F.I.R. No,10 of 1995 registered at Police Station F.I.A. (S.I.U.), Islamabad, under sections 409, 420, 468, 471, 477-A and 109, P.P.C. Read with section 5(2) of the Prevention of Corruption 'Act, 1947.

2. A preliminary objection as to the maintainability of this appeal has been raised by the learned Deputy Attorney-General and Mr. M. Saleem Sehgal, Advocate for respondents Nos.4 and 5 on the strength of proviso to subsection (2) of section 3 of the Law Reforms Act, 1972 which we would like to dispose of at the outset.

3. Both the learned Deputy Attorney-General and Mr. M. Saleem Sahgal Advocate have argued that the Constitutional petition before the learned single Judge arose out of proceedings under the Criminal Procedure Code which provides for appeal and revision and as such this appeal is not maintainable. They have further submitted that, in any case, as Mr. Tajjamal Hussain is in custody pursuant to an order of remand passed by a learned Magistrate which has been held to be a judicial order and, therefore, revisable, this appeal does not lie.

4. The learned counsel for the appellants has, on the other hand, contended that in the Constitutional petition, appellant No,1 had sought quashment of the F.I.R. And no appeal or revision lies against the order for registration of case and as such the appeal is not hit by proviso to subsection (2) of section 3 of the Law Reforms Act, 1972.

5. Having heard the learned counsel for the parties, we do not find any merit in the objection raised by the learned Deputy Attorney-General and Mr. M. Saleem Sahgal, Advocate. It may be true that in a way Constitutional petition had arisen out of proceedings under the Criminal Procedure Code but a reference to proviso to subsection (2) of section 3 of the Law Reforms Act, 1972 would show that the bar contained therein is not attracted merely for the reason that the law out of which the proceedings have arisen provides for an appeal or revision. On the other hand, in order to take away the right of appeal it has also to be shown that the original order in the proceeding was appealable and revisable. There cannot be any dispute and indeed it has not been argued by the learned counsel for the respondents that order or the act of registration of a case under the Criminal Procedure Code is neither appealable or revisable. Consequently, the mere fact that against certain other orders which were not under challenge before the learned single Judge, an appeal and revision is provided by the Code of Criminal Procedure, cannot take away the right of appeal against the order of the learned single Judge of this Court.

6. As to the other contention of the learned counsel for the respondents that as appellant No,2 is in custody under order of remand the acceptance of this Constitutional petition would amount to set aside that order which is revisable. We must state that the argument is somewhat far-fetched and involved. At the time when the Constitutional petition was filed there was no such order in existence. Be that as it may, the appellants have challenged the act of the registration of a case against which no appeal or revision lies and not the order of remand which in fact was passed subsequent to filing of the Constitutional petition. Reliance of Mr. M. Saleem Sahgal, Advocate on the two cases cited by him Mst. Karam Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 is of no help to him as in those cases the position was converse and exactly the opposite as these the Constitutional petitions were directed against the order passed subsequent to the original order of allotment and it was in that context ruled that notwithstanding that in the Constitutional petition, subsequent order was assailed, the original order in the proceedings remains to be the order by which the property was transferred. In this view of the matter we have no hesitation in repelling the preliminary objection raised by the learned counsel for the respondents. F.I.R. Was substituted and whether there was reasonable explanation available?

Consequently, I find myself constrained to extend benefit of doubt in this case to all the accused/appellants as the cardinal principle of safe dispensation of justice requires and that the Courts should be cautious to see that innocent persons are not convicted even if certain number of guilty persons get away with the acquittals. Resultantly, this appeal is allowed and the impugned judgment and sentence is set aside. The appellants are acquitted. They may be released forthwith if not wanted in any other case.

' These are the reasons for the short order.