1998 P Cr (PLP)

5. Mr. Gul Zaman Khan has cited following authorities:‑‑ (1) Case of Azizur Rahman v. The State PLD 1960 Dacca 631 In this case a complaint was filed before a Magistrate of the 1st Class at Chittagong by one Tamju Meah alleging various offences including those of rioting with deadly weapons, murder, grievous hurts etc. On the complaint the learned Magistrate forthwith examined the complainant on solemn affirmation but postponed the issue of process and made the following order:‑‑ "Exceeding the complaint on S.A. This is the Patiya incident which took place on 6‑2‑1958, which is being investigated into by the police. Send this case also to Mr. M. Haque, D.S.P., D.I.B., for investigation and report. On 15‑2‑1958, another petition of complaint was filed by one Nur Ahmad and the learned Magistrate passed the following order:‑‑ Exceeding the complaint on S.A., S.P., Chittagong will hold the investigation or get the. case investigated by any responsible officer and take necessary action after registering a case'. " (2) Case of Abdul Haleem v. Raja Qurban Hussain and others PLD 1965 Lah.

570. In this matter it was held "a person complained against does not become an accused until it has been decided to issue process against him under section 204, Cr. P.C" (3) Case of Ajab Khan v. Masal and others PLD 1967 Pesh.

184. In this authority the dictum laid down is that "an order under section 202 is one by virtue of which the Magistrate decides to postpone the issue of process for compelling the attendance of the accused person, where, for any reason that he thinks fit, he wishes to hold an inquiry or direct any inquiry or investigation into the complaint." (4) Case of Muhammad Nawaz v. The State 1970 PCr.LJ 1240. The learned Judge in this case has held that "even if there was any illegality attaching to the investigation, or to the arrest of the petitioner, the proceedings before the Court will still be competent. The Court is not divested of its jurisdiction because of the fact that an illegality attaches to the investigation." (5) Case of Mst. Shameem v. The State 1974 PCr.LJ Note 8 at p.5. In this note it was held "a mere perusal of section 436, Cr.P.C. would show that the High Court, Sessions Judge and a District Magistrate have been given by that section concurrent powers of revision and in exercise of their revisional power to order that which they are authorised to do in this connection." (6) Case of Aziz Maseeh v. The State PLD 1976 Lah.

53. In this case the learned Judge was of the opinion that "investigation by Muhammad Latif Shah, Sub‑Inspector Police, without obtaining specific order from a Magistrate of 1st Class in this case has not vitiated the trial of the appellant but the failure in that behalf is only, an irregularity curable under section 537, Cr.P.C."

6. Mr. Zawar Hussain Jafrv, learned A.A.‑G., Sindh has continued that initially the inquiry was forwarded by the learned trial Court to the Deputy Director. Anti‑Corruption Establishment, Karachi for enquiry and report but the same as not conducted by him and forwarded to the Inspector, Circle Officer Anti‑Corruption, who submitted the report direct to the Court; that a delegatee cannot delegate his powers; that the order of the, learned Special Judge, Anti Corruption (Provincial), Karachi, is tentative in nature and has not taken finality as yet as for the time being attendance of respondent Mazhar Farooq has been dispensed with and the Deputy Director, Anti‑Corruption Establishment has been directed to submit the enquiry report: that there is no illegality or irregularity in the order of' the learned Judge, which is within the parameter of the law; that order of the Learned trial Court does not call for any interference by this Court in this revision application.

7. Mr. Zawar Hussain Jafry, learned A.A.‑G. has referred the following authorities:‑‑ (1) Case of Ghulam Hussain v. The State 1996 PCr. LJ

514. In this case it has been held that "where the law provides a particular procedure for doing a thing in a particular manner then that thing should he done in prescribed manner and not in any other way". (2) Case of Iftikhar Baig v. Muhammad Azam and others 1996 SCMR

762. In this authority the Honourable Supreme Court has held that "the law is firmly settled that no act or omission of the Court should be allowed to prejudice the rights of the parties and the Court was bound to rectify the error once it was brought to its notice".

8. I have heard both the learned counsel for the parties and perused the material placed with this application. Admittedly the learned Judge had forwarded the complaint to the Deputy Director, Anti‑Corruption for inquiry and report, who forwarded the same to the Circle Officer, Anti‑Corruption Establishment, Karachi and the report without being placed before the Deputy Director was directly submitted in the Court. The Inspector, Circle Officer is subordinate in rank to the A.S.P. But the order is tentative in nature and has not reached the stage of finality at all by the order of the learned trial Court the interest of the complainant, to any case, is not prejudiced. The case‑law cited by Mr. Gul Zaman Khan is not relevant and is quite distinguishable and as such is not helpful to the case of the applicant/complainant. Whereas the case‑law referred by Mr. Zawar Hussain Jafry, A.A.‑G. is applicable to the facts of the present case and the learned trial Judge has very rightly rectified the order and for the time being he has very rightly discharged the attendance of the accused/ respondent Mazhar Farooq, till final report is received from the Deputy Director, Anti‑Corruption. The orders of the learned trial Court are within the legal ambit and does not call for any interference by this Court. Consequently I dismiss the revision application, to limine.

9. On 9‑9‑1996 after hearing the parties the revision application was dismissed, in limine. These are the reasons for the same. H.B. T./J‑22/K Petition dismissed.