2017 P Cr (PLP)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

In this petition, filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the basic question involved for consideration is whether the Court has jurisdiction to consider the point of its jurisdiction to entertain pre-arrest bail application at the stage when it was going to decide the same.

2. In FIR No.298/2014 registered on the statement of Mian Faiz Rasool under sections 467/468/471/420/409, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947, with Police Station FIA/CC Multan, it is alleged that Ch. Amanat Ali, on the basis of bogus documents of ownership in respect of plot, got an electricity connection with the connivance of WAPDA officials.

3. In that FIR, Ch. Amanat Ali, through an application prayed for anticipatory bail on the ground that the complainant had no nexus with the plot in dispute and the story narrated by him, is cooked up story.

4. Learned Court while deciding the bail application of Ch. Amanat Ali, found that during the investigation, the authority had not collected any evidence constituting offence charged in the FIR, thus vide order dated 27.11.2015, the learned Special Judge (Central), Multan observed that the case was not triable by Special Court, rather it is triable by an ordinary Court as such disposed of the bail application. He has also ordered the investigating agency to delete the offence under section 409, P.P.C. and section 5 of the Prevention of Corruption Act, 1947. This order is subject matter of the instant petition.

5. Learned counsel for the petitioner submitted that the learned Special Judge (Central) did not have the power to declare at premature stage that the case of the petitioner against respondent No.2 was not triable by that Court and it falls within the exclusive jurisdiction of ordinary Court. In this connection, learned counsel has relied upon the case of "Allah Din and 18 others v. The State and another" (1994 SCMR 717).

6. The argument of learned counsel for the petitioner has been controverted by the learned counsel for the respondent No.2, while relying upon the cases of "Abdur Rehman v. Ghazan and 5 others" (2005 MLD 954) (Division Bench Peshawar) and "Asrar Ahmed Khan v. Special Judge, Anti-Terrorism Court, Faisalabad and others" (2012 YLR 1938) (Division Bench Lahore), submitted that a Court can take cognizance of a case when it applies its mind to the facts of the case and the relevant law and it can be done at any stage because cognizance in its general meaning means identification, ascertainment of, and getting knowledge about, the facts and relevant law of the case, so, according to the learned counsel, learned Court while deciding the pre-arrest bail application has rightly concluded that it has no jurisdiction to entertain the same.

7. I have considered the submissions made by the learned counsel for the parties and minutely examined the case law.

8. In the case of Allah Din (supra) the apex Court has made observations in the following words: "Question of jurisdiction of Special Court can be determined on the basis of FIR and other material produced by prosecution at the time of presentation of challan." When applied this principle to the facts and circumstances of the case, it is found that the learned Special Judge has shown his inability to decide the bail application of respondent No.2 due to lack of jurisdiction at the stage when the investigations were still under way and the prosecution has not submitted challan to the Court. The case of Asrar Ahmad Khan (supra), when examined, it is found that the question involved in this petition was not under consideration of that learned Division Bench rather the Court had made observations by considering section 23 of the Anti-Terrorism Act, 1997, bestowing the power to transfer the cases. For the purposes of this case, the judgment is not relevant and not applicable to the facts and circumstances of instant case. In the case of Abdur Rehman (supra), the learned Division Bench, Peshawar High Court has taken the view in the following words: "that Court takes cognizance of a case when it applies its mind to the facts of the case and the relevant law. It can be done at any stage because cognizance in its general meaning means identification, ascertainment of and getting knowledge about, the facts and relevant law of the case." The observation so, made by the learned Bench shows that at any stage the Court can take cognizance of a case including the stage when the bail application is under consideration of the Court. Although that judgment has been rendered while considering the vires of section 23 of the Anti-Terrorism Act, 1997, but for the purposes of understanding the real meanings of the words used by the said Court, the same is considered.

9. In this scenario, it is to be seen as to what material was available with the learned Special Judge (Central), when it proceeded to decide the bail. The record shows that at that stage, the investigating agency was still busy in sorting out the true facts of the case and did not opine that offence was not triable by the learned Special Judge or the offences were not made out. In this situation, when the prosecution has no sufficient evidence to make such an opinion then it would not be in the fitness of the things to say that even at bail stage a Court can take cognizance of the case. In this case, the lower Court found that the offence under the Prevention of Corruption Act, 1947 and 409, P.P.C. are not made out which observation was given in ignorance of the fact that the Investigating Officer has found the Sub-Division Officer and Line Superintendent of WAPDA, involved in granting electricity connection to the premises of respondent No.2. Even otherwise, this finding of Court tantamount decision of whole case, at the stage when no challan was before it.

10. In this background there is sufficient material with the prosecution to bring its case within the jurisdiction of Special Judge (Central). It would be valid to say now that unless and until final report under section 173, Cr.P.C. is not submitted in the Court, the Court has no jurisdiction to order for deletion or addition of offence and sending the aggrieved person to the ordinary Court. Moreover, the Court has vested with the powers to order deletion or addition of the offence, at the stage when it frames charge against the persons concerned and not before that. The prosecution agency under the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006, enjoys the powers to delete or add the offence, according to the facts and evidence collected by the agency, before submitting the report under section 173, Cr.P.C. to the Court. Learned trial Court has exercised its jurisdiction at the stage when the final report under section 173, Cr.P.C. was not before it and till that time investigations in the case had not been completed, so, this exercise of jurisdiction in any way cannot be treated as legal exercise by the Court. The order so, passed by the Court below in these circumstances, is not sustainable in the eyes of law.

11. For the foregoing reasons, the petition in hand is accepted and order passed by the learned Court below is declared of no legal consequences and is recalled. The learned Court may exercise such jurisdiction, when final report is submitted to it and when it proceeds to frame the charge against the culprits. SL/F-13/L Petition allowed.