P L D 1959 (W (PLP)

B. Z. KAIKAUS, J.‑On 11th November 1957, Taqi Ali respondent, Inspector of Central Excise, received information that some persons would be carrying smuggled gold the next day by 5 Up train So on the next day he entered the 5 Up train at Karachi and at Jungshahi he recovered from Jan Muhammad, who is tire applicant before us, arid from his companion named Muhammad Shafi 450 Tolas of smuggled gold. He was accom panied at that time by two Constables Muhammad Shafi and Muhammad Hanif. According to the applicant he prepared no mashirnama. The applicant went to the Railway Police at Jungshahi and lodged a report with the Head Constable of Police to the effect that he had been robbed of his ornaments by three persons one of whom was dressed in khaki like an officer. The Head Constable informed the police at Karachi of this report and the Karachi Police arrested Taqi Ali as well as his two companions when they were in the train which came to Karachi from Jungshahi. Taqi Ali was questioned by the Railway Police at Karachi as to whether he had any smuggled gold in his possession and; according to the allegations of the applicant, he denied. At this he was searched and the gold was recovered from him. After investigation Taqi Ali as well as his two companions were challaned by the police under section 392, P. P. C. This case was being heard by the Sub‑Judge and First Class, Magistrate at Kotri when an application was moved in his Court by the Public Prosecutor, acting under instructions from the District Magistrate, Dadu, praying for the withdrawal of that case on two grounds (1) that the case fell under section 5 (2) of the Prevention of Corruption Act and (2) that in any case the sanction under section 197, Cr. P. C. was needed but was wanting. This application was dismissed by the learned Sub‑Judge and First Class Magistrate. Taqi Ali then moved the learned Sessions Judge of Dadu by a revision application against this order of the learned Sub‑Judge and First Class Magistrate. The learned Sessions Judge happened also to be a Special Judge under the Criminal Law Amendment Act empowered to try cases under the Prevention of Corruption Act. In the revision application filed by Taqi Ali the learned Sessions Judge passed two orders. By the first order he transferred the case to his own Court on the ground that it was a case of section 5 (2) of the Prevention of Corruption Act which he alone was entitled to try as a Special Judge. Having transferred the case the learned Judge, on the very same day, acting in the capacity of a Special Judge, acquitted the accused on the ground that the acts alleged could only constitute an offence under section '5 (2) of the Prevention of Corruption Act and in the absence of a sanction by the Govern ment the prosecution could not proceed. Jan Muhammad has filed two revision applications Nos. 395 and 396 of 1958 challenging the two orders passed by the learned Sessions Judge. He contends that both the orders are without jurisdiction. That the learned Sessions Judge had no jurisdiction either as a Sessions Judge or as a Special Judge to transfer this case to his own file is not a matter on which there can be any doubt and in fact it is conceded before us not only by the learned counsel who appears for the State but even by the learned counsel who appears for Taqi Ali that he had no such jurisdiction, The Sessions Judge has no jurisdiction to transfer cases under the Criminal Procedure Code and so far as the Special Judge under the Criminal Law Amendment Act is concerned he can take cognizance of a case on a complaint or on a report by tic police and while there are certain cases of which he alone can take cognizance there is no procedure provided and no authority given to him by the Prevention of Corruption Act or the Criminal Law Amendment Act for withdrawing from the file of any A4L:istrate a case which in his opinion is triable by him or the facts alleged wherein constitute in his opinion an offence exclusively triable, by him. While the order of transfer is without jurisdiction it may not by itself vitiate a trial for an offence which the learned Special Judge was entitled to try. If there be no lack of inherent; jurisdiction in a Court to try the accused for a particular offence then the fact that the case has not come to the Court in the B regular way may not make the trial bad. Had therefore the learned Special Judge tried the accused for an offence under section 5 (2) of the Prevention of Corruption Act and acquitted him of that charge his order may still have been good in law though that order certainly would not have prevented the trial of the same accused for an offence which it was not for the learned Special Judge to try. However in the present case the learned Sessions Judge has held no trial for an offence under section 5 (2`I~ of the Prevention of Corruption Act. He has simply acquitted the accused on the technical ground that the sanction of the appropriate authority is wanted. This is not a ground for and acquittal. It is only a ground for refusing to take cognizance. The order of the learned Special Judge, therefore, in so far as it acquits the accused of an offence under section 5 (2) is entirely devoid of any effect. So far as a prosecution under section 392, P. P. C. is concerned it would not possibly have had any effect: Learned counsel for Taqi Ali though he concedes the lack of jurisdiction in the learned Sessions Judge to transfer this case, urges that we should still not send back the case for retrial because the allegations made by the prosecution do not constitute an offence under section 392, P. P. C. We have heard him because, although the order of transfer was illegal, we would be quite prepared to quash the proceedings if on the allegations of the prosecution no offence under the Pakistan Penal Code was made out. However it is clear to us that on the allegations put forward by the prosecution Taqi Ali and his associates did commit an offence under the Pakistan Penal Code. The prosecution case is that the accused did not, from the very beginning intend to take this property to the Customs Department and deposit it there, and that the intention was to appropriate this property, Taqi Ali had under the law authority to search any person for smuggled gold and to seize those goods but if he either recovered the property with the intention of appropriating it or after recovering it with an honest intention he changed his mind and did some act for the purpose of appropriating it he would still be guilty of an offence under the Pakistan Penal Code. It may be an offence under section 409 and not under section 392, P. P. C. But there can be little doubt that such an act would not only be a misconduct under the Prevention of Corruption Act as the learned Judge seems to think but also an offence under the P. P. C. It was not by the Prevention of Corruption Act that such acts were made punishable for the first time. These two revision applications are accepted. The order of the learned Sessions Judge transferring the case to his own Court and the subsequent order of acquittal are set aside. The learned Magistrate will not proceed with the trial of the case. K. B. A. Applications accepted.