AMAN ULLAH RANJHA, ADVOCATE vs SPECIAL JUDGE, ANTI-CORRUPTION, SARGODHA and another

ORDER

' SYED SHABBAR RAZA RIZVI, J.--- Through this criminal revision the learned counsel has called in question order of the learned Special Judge, Anti-Corruption, Sargodha, dated 15-9-2008.

2. The petitioner filed a private complaint against Khadim Hussain, and others under sections 410, 420, 468, 471, 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 in the Court of learned Special Judge, Anti-Corruption, Sargodha. After recording statement of the complainant, the learned Special Judge, Anti-Corruption felt necessity to entrust investigation/inquiry to Deputy Director (Investigation) Anti-Corruption Establishment, Sargodha vide his order, dated 21-7-2008.

Later on, the investigation/inquiry was entrusted to the D.S.P. (Legal), Sargodha vide impugned order, dated 15-9-2008.

3. I have considered the arguments of the learned counsel for the petitioner and the learned A.A.-G.

Punjab. According to the learned counsel for the petitioner in the instant case provisions of special law have precedence over the general law i.e. Criminal Procedure Code. On the basis of the above argument, according to the learned counsel for the petitioner, the learned Special Judge could not entrust inquiry/ investigation of the complaint to the D.S.P. (Legal), District Sargodha. For this argument, he refers to section 5(6) of the Act under the said provision of law only such a Police Officer can be entrusted with investigation in whose jurisdiction the offence was wholly or partly committed.

4. It is interesting to note that petitioner/complainant himself filed complaint before the learned Special Judge under section 200, Cr.P.C. Yet he contends that section 202, Cr.P.C. Is not applicable under which investigation/inquiry can be entrusted by the learned Special Judge to any Justice of Peace, a Police Officer or by such other person as the Court thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. At this point I may point out that section 202, Cr.P.C. Starts with phrase, "any Court" instead of mentioning a Magistrate, Sessions Judge, Special Judge, etc. I have no hesitation to observe that "any C Court" included "Special Judge" and in the instant case section 202, Cr.P.C. Is applicable. Moreover, the impugned order has been rightly passed under section 202, Cr.P.C.

5. Section 6 of the Act provides procedure in trial of cases and powers of Special Judge. According to which, the provisions of the Code of Criminal Procedure, 1898 except those in Chapter XXXVIII of that Code, shall in so far as they are not inconsistent with this Act, apply to the proceedings of the Court of a Special Judge and for the purpose of the said provision, the Court of Session trying cases without the aid of Assessors or Jury and a person conducting prosecution before the Court of Special Judge shall be deemed to be a Public Prosecutor. The Karachi High Court has already held that provisions of section 202, Cr.P.C. Are not inconsistent with provisions of Pakistan. Criminal Law Amendment Act, 1958. The learned High Court concluded its findings as under:-- "In the Karachi case it was stated that the jurisdiction to hold a preliminary inquiry for finding out a prima facie case was not specifically conferred on a Special Judge but it was neither considered nor shown as to how a provision for such an inquiry in the Criminal Procedure Code could therefore, be termed as inconsistent, within the meaning of the provisions of the Act. Thefe is nothing even in the discussion to suggest that this question was specifically raised. Mr. Zai the applicant was not in a position to refer to any other authority to support his contention. A Magistrate acting under the Criminal Procedure Code can for the purpose of ascertaining the truth or falsity of the contents of a complaint hold inquiry into the case himself or direct the same to be held by any other Magistrate or a Police Officer. He can dismiss a complaint if in his judgment no sufficient ground for proceeding is made out and for that purpose he can consider the statement of the complainant recorded on oath and also the result of the inquiry or investigation referred to above. Under the Pakistan Criminal Law Amendment Act, 1958, a provision equivalent to this is not to be found. It would, therefore, seem that the provisions of the Code of Criminal Procedure would automatically be available on the basis of section 5(2) of the said Code. By doing this no procedural inconsistency would take place with what is provided under the Pakistan Criminal Law Amendment Act, 1958." (M.M. K.A. Zai, Advocate v. The State and 3 others 1977 PCr.LJ 176).

' In a separate judgment, Lahore High Court also observed as under:--- "By virtue of section 6(1) of the said Act, would be deemed to be a Court of Session and a person conducting prosecution before the Court of a Special Judge would be deemed to be a Public Prosecutor. The provisions of the Code of Criminal Procedure except those of Chapter XXXVIII of the Code, shall, in so far as they are not inconsistent with the said Act, apply to the proceedings of the said Court." (Muhammad Aslam Khokhar and others v. State 2000 PCr.LJ 619)

In another judgment, referred to by the learned counsel for the petitioner himself, 1999 M LD 2237, Syed Hashim Ali Shah v. Special Judge (Central), it was held that procedure contained in the Code of Criminal Procedure,. 1898 is applicable to the proceedings in the cases before Special Judge (Central), in view of the provisions of law contained in sections 5 and 6 of the Act.

6. As a result of the examination and consideration of the above mentioned case-law, I hold that there is no illegality or legal infirmity in the impugned order passed by the Special Judge, Anti- Corruption, Sargodha, thus, this criminal Revision is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.