2006 PLP 2694 (YLR)

TARIQ SHAMIM, J.

Through this petition the petitioner has challenged the orders of respondent No.2/learned Magistrate Section 30, Sahiwal dated 15-4-2006 and 3-5-2006. 2 Brief facts of the case are that a case bearing F.I.R. No.110 of 2006 dated 16-3-2006 was registered under sections 409, 411 and 34, P.P.C. at Police Station Fateh Sher, Sahiwal. According to the F.I.R., the allegation against the petitioner (an employee of the WAPDA) is that he illegally supplied two bundles of wire to Faisal Mehmood and Kashif, who were apprehended by the police and on search the aforesaid two bundles of wire were recovered from their possession and were taken into custody by the police under section 550, Cr.P.C. After investigation the petitioner and other co-accused were found to be innocent and a discharge report was prepared and submitted before respondent No.2 the learned Magistrate Section, 30, Sahiwal who vide order dated 15-4-2006 disagreed with the discharged report and observed that since the offence under section 409, P.P.C. was incorporated in the F.I.R. being a scheduled offence can only be tried by a learned Special Judge. The local police then submitted discharge report before the Special Judge, Central, Multan, who did not accept the report in question by verbally observing that section 409, P.P.C. was no more a scheduled offence. The learned Magistrate Section 30, Sahiwal then passed an order dated 3-5-2006 in which it was observed that the prosecution should submit report under section 173, Cr.P.C. before the competent Court having jurisdiction in the matter.

3. Both the orders passed by the learned Magistrate Section 30, Sahiwal, have been challenged through this constitutional petition on the ground that the impugned orders were against law and facts of the case and were mechanically passed without examining the record. The learned Addl.A.-G. has contended that by virtue of section 5 of the Criminal Law Amendment Act, 1958 section 409, P.P.C. has been shown to be a scheduled offence which is only triable by a Special Judge; adds that the Special Judge Central, Multan, has already taken cognizance of the matter by entertaining bail application of the co-accused; further contends that a direction may be issued to the Investigating Officer to submit report under section 173, Cr.P.C. before the aforesaid Court.

4. I have heard the learned counsel for the petitioner as well as the learned Addl.A.-G. Perusal of the order of the A learned Magistrate dated 15-4-2006 reveals that orders were passed without application of judicious mind and without perusing the police file in a mechanical manner. Section 24 of the General Clauses Act, 1897 provides that any authority whether judicial or quasi-judicial or even an executive authority vested with any power to pass an order is required to give reasons in respect thereof. The impugned order cannot be termed as a judicial or a speaking order. In view of the dictum laid down by the Honourable Supreme Court in case of Federation of Pakistan v. Muhammad Tariq Pirzada and others (1999 SCMR 2744) and the case of Ahmad Din v. Illaqa Magistrate and others (2003 YLR 1049), I set aside the order dated 15-4-2006 passed by respondent No. 2.

5. The observation of the learned Magistrate that offence under section 409, P.P.C. being a scheduled offence was triable by a Special Judge was correct and legal. On submission of report under section 173, Cr.P.C. the learned Special Judge should have taken cognizance of the matter. In terms of section 5 of the Pakistan Criminal Law Amendment Act, 1958 (as amended from time to time) an offence under section 409, P.P.C. when committed by a public servant is a scheduled offence, exclusively triable by the Court of Special Judge. Relevant portion of section 5 of the Act is reproduced hereunder for easy reference:-- Section 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.

6. A perusal of the aforementioned provision of law clearly establishes that jurisdiction with regard to an offence committed by a public servant covered under section 409, P.P.C. being a scheduled offence is exclusively triable by the Court of Special Judge. Thus refusal by the learned Special Judge (Central) to entertain the report submitted by the Investigating Officer under section 173, Cr.P.C. was totally uncalled for. Insofar as the order dated 3-5-2006 passed by the learned Magistrate Section 30, Sahiwal is concerned, it is only to the extent that the report under section 173, Cr.P.C. is submitted before a competent Court, and hence it does not call for any interference.

7. For what has been discussed above, this writ petition is accepted and the order of the learned Magistrate dated 15-4-2006 being against the law is set aside. The Investigating Officer is directed to submit report under section 173, Cr.P.C. before the learned Special Judge (Central) Multan, which is the competent Court having jurisdiction in the matter. H.B.T./M-364/L Petition accepted.