1985P Cr (PLP)

RUSTAM S. SIDHWA, J.‑‑ This judgment will dispose of Cr.R.304 of 1984, filed by Ahmad Javaid, petitioner and Cr.R.305 of 1984, filed by Muhammad Iqbal, petitioner, against the order of the Special Judge, Anti‑Corruption (Central), Toba Tek Singh, dated 2‑6‑1984 suo motu summoning the first petitioner as an accused to face trial under sections 217, 218 and 409/109, P.P.C. (abetment), summoning the second petitioner and one Muhammad Asif as accused to face trial under section 409/34, P.P.C. as co‑accused together with the other accused referred to in the F.I.R. and issuing notices to Muhammad Iqbal, petitioner, and Muhammad Asif, to show cause why their bails be not cancelled and non‑bailable warrants against Ahmad Javaid, petitioner, for his arrest.

2. The brief facts of the case are that a mail bag containing three registered parcels and a small bag containing 17 registered letters was lost on 26‑7‑1983, during its transit from Post Office, Gojra, to Railway Station Gojra. One Aziz‑ur‑Rahman Sherwani, who had despatched Parcel No. 462, made a complaint to the postal department that his parcel had not been received by the addressee. Thereupon, the Senior Superin tendent, Post Offices, ordered an inquiry, which was conducted by the Assistant Superintendent, Post Office, Gojra. Hd came to the conclusion that one Riaz Shahid, who was peon in the main post office, Gojra, had purposely misappropriated the entire mail bag. Accordingly, on 28‑2‑1984 he sent a report to Police Station City, Gojra, on the basis of which F.I.R No. 31, dated 3‑3‑1984, was registered against Riaz Shahid. The investigation of the case was taken up by Ahmad Javaid S.I./S.H.O., Police Station City Gojra. During the investigation. Riaz Shahid on 7‑3‑1984 approached the Special Judge (Central), for pre‑arrest bail. He was granted interim pre‑arrest bail and the application remained pending. On 26‑3‑1984, Ahmad Javaid S. I., the first petitioner referred to above, stated that he had neither been able to contract Muhammad Afsar, complainant, nor he was able to record the statement of Muhammad Iqbal, Postal Clerk, the second petitioner stated above, yet in his opinion, Riaz Shahid, Mail Peon, was innocent. Seeing his lack of interest in the proper investigation of the case and his endeavour to shield the Mail Peon, the Special Judge (Central) directed the Public Prosecutor to go to the Superintendent of Police and to bring it to his notice the dishonest manner in which Ahmad Javid S. I., petitioner, was investigating the case and to request him to send it to F.I.A. for investigation or to get it investigated by some other police officer. However, the Superintendent of Police did not take any action. The proceedings were adjourned to 7‑4‑1984 on the request of Ahmad Javid, S. I., petitioner, to afford him an opportunity to, further investigate the case. Meanwhile, the Special Judge (Central) proceeded on long leave and the bail application was put up before the learned Additional Sessions Judge, Toba Tek Singh, who was working as Special Judge, and he, vide his order dated 7‑4‑1984, confirmed the interim bail of Riaz Shahid, Mail Peon, after relying on the statement of Ahmad Javid S.I., petitioner, who stated that he was innocent and was no more required by him. Feeling aggrieved, the learned P.P. then filed a petition for cancellation of the bail granted to Riaz Shahid, Peon. During the hearing of the said p6tition on 2‑6‑1984 the Special Judge (Central), after hearing the new Police Officer who appeared on behalf of the Investigating Officer and perusing 'the case record, not only cancelled the bail of Riaz Shahid, Mail Peon, but summoned the two petitioners to face trial for offences stated in para. 1 above, as co- accused with Riaz Shahid, Mail Peon, and also issued notices to Muhammad Asif, Acting Sub‑Post Master, for the cancellation of their bails.

3. Some time later, a complaint under sections 509/109, 217 and 218, P.P.C. and under section 5 of the Prevention of Corruption Act, 1947, having been received from Muhammad Afsar Rehbar, Assistant Superintendent, Post Offices, Gojra Sub‑Division, against Riaz Shahid, Mail Peon, Ahmad Javid S. I., petitioner, and Muhammad Iqbal, Mail Clerk, petitioner, the Special Judge (Central) recorded the statement of the said complainant and after perusing the police file, which was already in his Court in connection with the suo motu proceedings initiated earlier, found on 9‑6‑1984 that a prima facie case stood made out against the two petitioners for the offences for which he had earlier summoned them on 2‑6‑1984 and issued notices to the said two petitioners for the offences as are referred to in para. 1 above and also against Riaz Shahid, Mail Peon, for offences under section 409/34, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947, read with section 34, P.P.C.

4. Being aggrieved by the order of the learned Specail Judge (Central) dated 2‑6‑1984, Ahmad Javid S. I., and Muhammad Iqbal, petitioners, filed revision petitions against the same, which are now before me for disposal.

5. On behalf of the petitioners the following submissions have been made:‑ First, that under section 6(1) of the Pakistan Criminal Law Amendment Act, XL of 1958 the provisions of the Code of Criminal Procedure, except those of Chapter XXXVIII of that Code, apply to proceedings before the Special Judge and since the Court of the Special Judge is to be deemed to be a Court of Sessions, the Special Judge could only have taken cognizance of the case if it was sent up under section 193(1) of the Code. Since in the instant case, the Special Judge had first acted suo motu upon his own information received and later took cognizance upon receiving a complaint of facts the Special Judge was not competent to take cognizance of the case. Second, the Special Judge could not have taken cognizance of the case suo motu, in view of section 4(1) of Act XL of 1958. Third, offences under section 5(2) of the Prevention of Corruption Act, 1947, and section 409/10,9 (Abetment) P.P.C. do not ex facie stand made out against Ahmad Javaid, petitioner, even on the basis of admitted facts appearing on the record and that, therefore, the said petitioner should not be made to face trial in respect of the said offences. Fourth and last, that sanction of Government not yet having been obtained for the prosecution of the petitioners, the impugned order should be vacated.

6. I have heard the arguments of the learned counsel for the petitioners and the State. These two petitions can be dismissed forthwith, as the order of the Special Judge, dated 9‑6‑1984 is not being challenged, which is the later order, but that of 2‑6‑1984 is being challenged, which is an earlier one and which stands superseded by the later. However, I will deal with the arguments addressed by the learned counsel. With regard to the first submission, I agree that by virtue of section 6(1) of the Pakistan Criminal Law Amendment Act, 1958, a Court of the Special Judge is to be deemed to be a Court of Session, but this legal fiction is only limited to the extent that it permits the Special Judge, who in reality may not be or never has been a Sessions Judge or an Additional Sessions Judge, to be treated as a Sessions Judge whilst trying cases under the Act without the aid of assessors or jury, and to exercise such powers as are available to a Sessions Judge under the provisions of the Criminal Procedure Code, except those of Chapter XXXVIII of those which are inconsistent with the Act. The first question is whether the Special Judge can take cognizance of the case himself. Section 4(1) of the Act permits him to take cognizance of a case in relation to any of the scheduled offences committed within his jurisdiction upon receiving a complaint of facts which constitute such offence or upon a police report. Any provision in the Code debarring a Sessions Judge from taking such cognizance, if present, would, therefore, being inconsistent with the Act, not apply. The next question is what type of trial can the Special Judge hold; a summary, warrant or sessions trial. Section 6(3) states that the provisions of Chapter XX of the Code shall apply to trials of cases under the Act before him, in so far as they are not inconsistent with any of the provisions of the C Act. Any provision in the Code debarring a Sessions Judge from holding a summary trial, if present, also, being inconsistent with the Act, would not apply. The provision in the Code that a Court of Session cannot take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190(3), is because of the fact that District Magistrates, Sub‑Divisional Magistrates and other Magistrates specially empowered in that behalf, can take cognizance of offences which are exclusively triable by a Court of Session and under section 190(3) such persons taking cognizance of such cases, are bound, without recording any evidence, to send the same to the Court of Session for trial. Hereunder the Act, the Special Judge himself takes cognizance of the case exclusively triable before him. Since section 190(1) of the Code is inconsistent with section 4(1) of the Act, the Magistrate is debarred from taking cognizance of a case upon a complaint or a police report relating to the offences mentioned in the Schedule to, the Act. Even otherwise, the powers available under section 190(1) of the Code cannot be exercised by a Sessions Judge. Therefore, this section cannot be pressed into service under the deeming provision of section 6(1) of the Act. In these circumstances, it is not necessary for any intervening Magistrate to first take cognizance of the case triable by the Special Judge and then to send it upto him, as provided by section 193(1) of the Code. In the instant case, the Special Judge took cognizance of the case on 9‑6‑1984 on the complaint of facts submitted by the Assistant Superintendent, Post Offices, Gojra Sub‑Division, and having found a prima facie case on the basis of the complainant's statement so recorded and the police record, no objection can be taken with regard to the cognizance of the case by him as such. Since the order of 9‑6‑1984 supersedes that of 2‑6‑1984, the earlier order can be ignored. With regard to the second submission, the same has no merit. It is true that earlier the Special Judge on 2‑6‑1984 took cognizance o the matter suo motu upon his own knowledge and information received, but later having taken cognizance on 9‑6‑1984 of the same matter on the complaint submitted by the Department, which act was permissible to the learned Judge by virtue of section 4(1) of the Pakistan Criminal Law Amendment Act, 1958, the earlier order, dated 2‑6‑1984 can be safely ignored and the latter order can be taken into consideration. With regard to the third submission, the same is without force as the petitioners have not cared to challenge the later impugned order dated 9‑6‑1984 passed by the Special Judge. For this reasons, I would not: like to gratuitously interfere in the matter. The petitioners can, if se advised, move under section 249‑A or 265‑K for the relief in this respect. With regard to the fourth and the last submission, the learned counsel was not able to make an affirmative statement that the Special Judge had, on receipt of the complaint, addressed a letter to the appropriate department calling for sanction, which the department had expressly refused. In these circumstances, this submission has no force.

7. The upshot of the above discussion is that there is no merit in the two revision petitions (Cr. R. 304 of 1984 and Cr. R. 305 of 1984) filed by Ahmad Javid and Muhammad Iqbal, petitioners.

8. For the foregoing reasons, both the revision petitions filed by the petitioners are hereby dismissed. However, acting under section 526/561‑A, Cr.P.C. read with section 10(3) of the Pakistan Criminal Law Amendment Act, I hereby transfer the cases pending against the two petitioners and others from the Court of Mr. Abdul Majid Tiwana, Sessions Judge, Ex‑Officio Special Judge, Anti‑Corruption (Central), Toba Tek Singh, to the Court of the Sessions Judge, Ex‑Officio Special Judge, Anti‑Corruption (Central), Faisalabad. This action stands necessitated by the fact that on 2‑6‑1984 the Special Judge (Central), Toba Tek Singh, took cognizance of the offences upon his own knowledge and information received, which entitled the accused to have the case tried by another Court. Though the main order in the field is that of 9‑6‑1984 passed by the learned Special Judge (Central), Toba Tek Singh, but, considering that the Special Judge earlier took action upon his own knowledge and was animated with the spirit to see that the l accused, who were clandestinely let off by the Investigating Officer, should be proceeded against in law, the ends of justice require that the accused should have a fair and impartial trial, which in the instant case may not become apparent, if the case is tried by the present Judge. M. Y. H. Petition dismissed.