P L D 1962 (W (PLP)

Date of hearing : 23rd May 1962. This is a criminal revision application in which the prayer is that the private complaint now pending against the applicant under section 409, P. P. C., in the Court of the A. D. M. Jacobabad may be, quashed on ‑the ground that the offence in question being a scheduled offence Within the meaning of the P4kistan Criminal Law (Amendment) Act, 1958, the jurisdic tion of an ordinary Court to try such an offence is barred by section 5 of Act XL 1958.

2. The facts giving rise to this matter briefly are that the applicant was first appointed as a clerk in the office of the Joint Sub‑Judge and F. C. M. Jacobabad on 31‑10‑1956. A Criminal case known as State v. Parsomal under sections 380/457/411, P. P. C., came up for hearing in that Court and the applicant was put in charge of the case property pertaining to this case. This property consisting of gold ornaments disappeared and was not produced before the Court at the hearing on 25‑11‑1956. The applicant was handed over to the Anti‑Corruption Police who after investigation challaned him before the Special Judge Anti‑Corruption, Jacobabad. Mr. M. I. Kazi who was then the District and Sessions Judge, Jacobabad, granted the necessary sanction for this prosecution and thereafter as Special Judge Anti‑Corruption, Jacobabad, he tried the applicant and convicted him under section 409, P. P. C., read with section 5 (2) of the Prevention of Corruption Act and sentenced him to twelve months' rigorous imprisonment and to pay a fine of Rs.

100. On appeal this conviction and sentence was set aside by this High Court whose judgment is now reported in Javed Hussain v. The State (P L D 1960 Kar. 57). While setting aside the conviction of the applicant this High Court then directed that he should be retried by another Special Judge competent to try him. Accordingly, the applicant was then put up for trial before Mr. Azizullah M. Memon, Special Judge Anti‑Corruption, Sukkur, who on 9‑1‑1961, because of the ruling of the Supreme Court in the case of Hamid Ghulam Sadiq dis charged the applicant. Thereafter, on 4‑7‑1961, a private complaint under section 409, P. P. C., was filed against the applicant in the Court of the District Magistrate, Jacobabad, by Mr. Ghulam Kadir A. Soomro Joint Sub‑Judge and F. C. M. Jacobabad. This complaint was transferred by the D. M. to the file of the A. D. M. Jacobabad where it is now pending.

3. Mr. Azizullah Sheikh, Barrister‑at‑law, appearing on behalf of the applicant has advanced a short argument that the applicant being a public servant at the time of the offence, and the offence being one under section 409, P. P. C., it is a Scheduled offence within the meaning of the Pakistan Criminal Law (Amendment) Act of 1958, and, therefore, the A. D. M, Jacobabad, has no jurisdiction to try this case. Mr. Azizullah relied upon section 5 of Act XL of 1958, which clearly states that‑

"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." Section 409, P. P. C., is one of the offences mentioned in the Schedule to this Act.

4. Mr. Abdul Kadir Sheikh, the learned Assistant Advocate-- General, appearing on behalf of the State concedes this point trade by the learned counsel on behalf of the applicant and agrees that the A. D. M. Jacobabad has no jurisdiction to try this complaint and that the' proceedings in his Court should, therefore, be quashed. The only question for me to decide is whether there should be a further re‑trial in this matter and on this point the learned Assistant Advocate‑General is of the view that this case should be sent back to the Sessions Judge, Jacobabad, who is also ex‑officio‑ Special Judge, Anti‑Corruption, Jacobabad; for trial in accordance with law: Finally the learned Assistant Advocate‑General has invited my attention to the words used by S. A. Mahmood, J. in Jawed Hussain v. The State. When setting aside the conviction of this appellant he directed that‑ "he shall be retried by another Special Judge competent to try him."

5. I have considered the argument urged before me in this matter. I am satisfied that by reason of section 5 of Act XL of 198, the A. D. M. Jacobabad has no; jurisdiction to try this Scheduled offence and that, 'therefore,' the proceedings now pending in his Court in regard to this matter should be quashed. The only point of importance that is left for me' to determine is whether there should or should not be a retrial of the applicant in this Case. It has been 'pointed out that the applicant who is a young man of about over 25 years of age has already been facing successive trials in regard to this matter since 1956. It has further been 'suggested by his counsel that it was through no fault of his that he was put up before a wrong Court so that his case has not as yet been com pleted and is still pending in Court. I agree that the applicant who is a young man has for the past six years been facing succes sive trials in this matter. At the same time I find that my learned brother S. A. Mahmood, J., had directed that the applicant shall be retried by another Special Judge competent to try him. It maybe said that Mr. Azizullah M. Memon the then Special Judge, Anti‑Corruption, Sukkur, has so tried and discharged the applicant on 9‑1-1961. However, that may be, while quashing the proceedings against this applicant now pending in the Court of the Additional District Magistrate, Jacobabad, I would leave it to the authorities concerned to consider now the strength of the prosecution case against this applicant and then to decide for themselves whether he should be prosecuted again before a competent Special Judge, Anti‑Corruption in this very matte after this lapse of, six years. S. B. Order accordingly.