P L D 1993 Karachi 706 (PLP)

Applicant is an employee of the Canteen Store Department of Government of Pakistan. On 18-6-1990 at about 2-00 p.m. Lt.-Col. Muhammad Yousuf, Zonal Manager, Canteen Store Department, lodged a complaint at Sharah-e-Faisal Police Station, Karachi. His complaint was registered as Crime No. 206/90 of that Police Station and was recorded under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 . The Applicant was arrested in the investigation of the case but ultimately he was released by the Police and report under section 169, Criminal Procedure Code was filed by them. On 26-8-1991 again the same officer of the Canteen Store Department went to Police Station Shahrah-e-Faisal and complained of misappropriation of Government funds relating to the department reported in the earlier report. His report was registered as Crime No. 178 of 1M under, sections 408 and 420, Pakistan Penal Code. The applicant was nominated in the F.I.R. He, therefore, approached the Sessions Judge (East), Karachi for grant of pre-arrest bail in that case. The Sessions Judgd (East), Karachi, -granted him bail before arrest on 17-5-1992. All remained well till 3-8-1992 when a third F.I.R. was registered at Police Station F.I.A., Crime Circle 11, Karacht under sections 409, 420, 468, 471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. This FIR. was registered by Sifat Ali Asghar, Inspector of F.I.A. as, the second F.I.R. registered in the case was transferred to the FIA for investigation. Officers of the F.I.A. started chasing the applicant with the result that he approached Special Judge, Anti-Corruption (Central 11), Karachi for his pre-arrest bail, which was declined and the applicant was taken in custody. The applicant repeated his bail application after arrest without any success. It is only thereafter that he has filed the present bail application. Mr. Umer Farooq, Advocate for the" applicant, has referred to the Notification No. F. Adm. 15-8/58(l) dated. 25th November, 1959 whereby all, sessions Judges, Additional Sessions Judges and Assistant Sessions Judges are notified to be ex officio Special Judges within their respective Sessions Divisions for the trial of offences under the Pakistan Criminal Law Amendment Art, 1959. He has also referred to another Notification of the same date which notifies that every sessions Judge in West Pakistan is to be considered as Senior Special Judge for their respective Sessions Divisions. . Mr. Abdul Hakeem H. Bijrani Assistant Advocate-General Sindh, confirms the position and has produced photostat copies of the two notifications and states that these Notifications are still in force. In view of these Notifications although there was no necessity for the applicant to have approached the Special Judge, Anti-Corruption for his pre arrest bail but Mr. Umer Farooq, his Advocate, states that officers of the FIA Department refused to recognise the order of the Sessions Judge, Karachi (East) granting pre-arrest bail to the applicant which necessitated filing of application before the Special Judge for pre-arrest bail. He contends that once bail was granted by the Sessions Judge, Karachi (East) exercising his power as the Senior Special Judge for that Division, it was not open for the Special Judge, Anti-Corruption (Central 11), Karachi to have refused his bail application. In fact proper course for him would have been to reject the bail application on the ground that no such application was required to be filed by the applicant in view of bail having already been granted to him by the Sessions Judge, Karachi (East). This bail application was fixed before me on 21-10-1992 when prima facie I had considered that the applicant was entitled to grant of bail in the circumstances of the facts stated hereinabove and I had allowed him bail pending further orders in the matter. Today the matter has been listed for confirmation of the bail. The two Notifications referred to by both the counsel are reproduced hereinbelow

'No. F. Adm. 15-8/58(l).

In exercise of the powers conferred respectively by subsection (1) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and in supersession of the Ministry of Law Notification No. F39 (2)/54-E, dated the 28th January 1959 and No. F. Adm. 15-1/58 dated the 4th March, 1958, the Central Government is pleased to appoint all Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges in East Pakistan and West Pakistan, who have for a period of not less than three years exert" whether continuously or not, the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, to be ex officio Special Judges within their respective Sessions Divisions for the trial of offences under the said Act. No. F.Adm. 15-8/58 In exercise of the powers conferred by subsection (2) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Central Government is pleased to declare all the Sessions Judges in East Pakistan and West Pakistan to be the Senior Special Judges for their respective Sessions Divisions." In view of above it is clear that the Sessions Judge, Karachi (East) while granting bail to the applicant was exercising the concurrent power conferred on him by virtue of the two Notifications mentioned above. once such power is exercised by him the other Judge, i.e. Special Judge Anti-Corruption having concurrent jurisdiction could not exercise the same powers at that stage' of the investigation. Mr. Abdul Hakeem H. Bijarani~ Assistant Advocate-General, Sindh, has further confirmed that power to cancel bail under section 497(5), Criminal Procedure Code was also not available to the Special Judge as that provision is attracted only when a bail is granted in terms of section 497, Criminal Procedure Code while in the instant case the bad was granted under section 498, Criminal Procedure Code. For the foregoing reasons bail granted to the applicant on 21-10-1992 pending his trial is hereby confirmed and the bail application is disposed of. N.H.Q./M-1865/K Bail allowed