2007 P Cr (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

Through this revision application the applicants have prayed for examining the legality and proprietary of the proceedings of Special Case No.51 of 2001 pending in the Court of Special Judge, Anti-Corruption (Provincial) Karachi arising out of F.I.R. No.52 of 2005, registered at Police Station ACE, Karachi under sections 380, 454/34, P.P.C. read with section 5(2) of Act II of 1947, and ultimately quashing the same.

2. Brief facts of the case are that on 15-10-2001, Syed Basit Ali, Secretary, K.D.A., lodged an F.I.R. at Police Station ACE, Karachi under sections 380, 454/34, P.P.C. read with section 5(2) of Act II of 1947, on the basis of F.I.R. No.98 of 2001 of Police Station New Town Karachi stating therein that during a raid conducted by S.D.M., K.D.A., S.H.O., K.D.A., Additional Director (E&E), K.D.A. Aziz Qureshi, AEE, some files were recovered from the residence of Muhammad Anwar Memon, who is not a public servant. On the basis of the F.I.R. interim charge-sheet was submitted against the petitioners-in the Court of Special Judge (Anti-Corruption), Provincial Karachi. The interim charge-sheet was treated as final and the-case is pending in the said Court. The petitioners were aggrieved as according to them the Special Judge (Anti-Corruption), Provincial, Karachi was not vested with jurisdiction to try the offences falling beyond the prescribed Schedule. Accordingly, they moved an application under section 249-A, Cr.P.C. praying therein for acquittal of the accused persons. The said application was rejected vide order, dated 29-3-2006. Therefore, the petitioners have approached this Court.

3. The main contention raised on behalf of the petitioners is that the F.I.R. was registered and interim challan was presented before the Special Judge (Anti-Corruption), Provincial, Karachi, which disclosed the offences falling under sections 380, 454/34, P.P.C. while the Special Judge (Anti-Corruption) Provincial, Karachi has a limited jurisdiction for trying only the offences covered by the Schedule under section 5 of Pakistan Criminal (Amendment) Act. Since the sections involved in the F.I.E. fell beyond the ambit of the Schedule, taking cognizance and the subsequent trial by Special Judge was illegal.

4. Ms. Shahida Jatoi, learned counsel appearing for the State has not been able to controvert the above position.

5. The contentions raised have been considered and the material placed on record has been perused.

6. Special Judges are appointed under section 3 of Pakistan Criminal Law (Amendment) Act, 1958 to try and punish offences specified in the Schedule. Section 4 of the Act provides that a Special Judge may take cognizance of any offence committed or deemed to have been committed within the territorial limits notified in his jurisdiction, and triable under the Act upon receiving a complaint of facts 'which constitute such offence or upon a report made by a Police Officer. Section 5 of the Act stipulates that 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. The Schedule reads as under:

"(a) Offences punishable under sections 161 to 166, 168, 217 and 218 of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith. (b) Offences punishable under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. (c) Offences punishable under Prevention of Corruption Act, 1947, and as attempts, abetments and conspiracies in relation thereto or connection therewith."

7. The allegations disclosed in the F.I.R. relate to theft of office files which were alleged recovered from the residence of applicant No.2, Muhammad Anwar Memon.

8. F.I.R. was registered under sections 380, 454, P.P.C. and the charge-sheet was also submitted under the above-noted sections of P.P.C. Needless to mention that section 380, P.P.C. relates to theft in dwelling house while section 454, P.P.C. deals with the offence of A lurking house trespass. It is obviously clear from perusal of the Schedule that the offences falling under sections 380, 454, P.P.C. were not covered by the Schedule and thus, were not triable by the Court of Special Judge appointed under section 3 of Pakistan Criminal Law (Amendment) Act, 1958.

9. Even there was no accusation of bribery and corruption against the applicants/accused to constitute an offence under the Prevention of Corruption Act, 1947.

10. Resultantly, it was manifestly clear that the Special Court constituted under Act XL of 1958 had no jurisdiction to take cognizance of the matter to try the offence.

11. Thus, the cognizance taken by Special Judge (Anti-Corruption), Provincial, Karachi and subsequent trial/proceedings were unlawful.

12. For the above reasons, this criminal revision is admitted and allowed and the proceedings pending before the Special Judge (Anti-Corruption) Provincial, Karachi, arising out of F.I.R. No.52 of 2001 of Police Station ACE, Karachi are declared to be illegal. The Special Judge (Anti-Corruption), Provincial, Karachi shall accordingly return the charge-sheet/papers to the concerned police for proceeding in accordance with law. M.H./R-27/K?????????????????????????????????????????????????????????????????????????????????????? Proceedings quashed.