1980 P Cr (PLP)

2. The brief facts of the case are that the applicant was an employee, as a conductor with the Karachi Transport Corporation. On 20th February, 1979, he was on duty at the Model Depot. of K. T. C. and was incharge of Bus No. 803‑478 of Route No. I‑E. He was directed to take the Bus to Orangi No. 4 ; but instead of going there, he took the Bus to Benaras Chowk and took Mill workers to the Mill area. At about 2.20 p.m. the Bus was checked by the learned K. T. C. Magistrate of Mobile Court, Karachi, at the Star Textile Mills. It was found that there were 81 passengers, all without tickets, who had paid their fare, in cash, to the applicant, at the rate of 25 paisas each, totalling to Rs.20.25. It was therefore alleged that the applicant had dishonestly misappropriated the said amount and thereby committed an offence punishable under sec tion 403, P. P. C.

3. The learned Magistrate had tried the applicant, adopting the summary procedure. The applicant had pleaded guilty to the charge and was sentenced to undergo R. I. for one month and also to pay a fine of Rs.100 or in default, to undergo further R. I. for 15 days.

4. The short point taken up in this case is that the applicant, being an employee of K. T. C. is a public servant. The offence with which he was charged and convicted is a scheduled offence under the Pakistan Criminal Law Amendment Act. In such a situation, it is contended, that the applicant could not be tried by the learned K. T. C. Magistrate of the Mobile Court, having no competent jurisdiction to take cognizance of the scheduled offence. It is further contended that in case of scheduled offence, it was necessary that the procedure as is envisaged in the Pakistan Criminal Law Amendment Act, had necessarily to be followed which has not been done in this case. Reference is made to section 5 (1) (3) and (4) of Act No. XL of 1958 which reads as under :‑‑‑ 5.‑(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the schedule shall be triable exclusively by a Special Judge. (3) All cases relating to the offences specified in the schedule and pending in any Court other than the Court of a Special Judge, immediately before the commencement of the Criminal Law Amendment Act, 1953 or this Act, shall, on such commencement, stand transferred to the Court of the Special Judge having jurisdic tion over such cases. (4) Whenever an offence is included in the Schedule by a notification of the appropriate Government made under subsection (2), all cases relating to that offence pending in any Court other than the Court of a Special Judge immediately before such notification shall stand transferred to the Court of the Special Judge having jurisdic tion over such cases. Section 6 (5) of the Act XL of 1958 further enumerates :‑ Notwithstanding anything contained in the Code of Criminal Pro cedure, 1898, or in any other law, previous sanction of the appro priate Government shall be required for the prosecution of d public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act.

5. Since the point of jurisdiction was involved, I had issued notice to the learned A.‑G. to personally appear and argue whether the employees of K. T. C. are the public servants and if so, whether the K. T. C. Magistrate of the Mobile Court had the jurisdiction to try the scheduled offence under section 403, P. P. C.

6. Today Syed Sarfraz Ahmed, the learned Asstt. A.‑G. has appeared and he states that the employees of K. T. C. are the public servants and the learned Magistrate had no jurisdiction to try the scheduled offence.

7. In the result, I accept the revision application and set aside the judgment of conviction on the ground that the trial of the applicant by A the learned K. T. C. Magistrate of Mobile Court, Karachi, was without jurisdiction. The applicant is present on bail, His bail bonds are discharged. Revision allowed.