Tanvir Alam and 3 others vs Special Judge Anti-Corruption, D.G. Khan
This criminal revision petition challenges the orders passed by the Special Judge Anti-Corruption, D.G. Khan, which simultaneously summoned the petitioners to face trial in FIR No. 18/2009 and directed a fresh investigation by the Circle Officer. The core legal question was whether a trial court, upon receiving a cancellation report from the police, possesses the jurisdiction to summon accused persons while simultaneously ordering further investigation into the same matter. The Lahore High Court held that the trial court acted with patent illegality by blowing hot and cold in the same breath. The Court determined that a trial court must either agree or disagree with a cancellation report and direct the submission of a challan, but it cannot summon accused persons when no formal challan is before it. Furthermore, the court lacks jurisdiction to summon accused persons while simultaneously remitting the case for further investigation, as there is no active case before the court to justify such summons. Consequently, the impugned orders were set aside, and the matter was remanded for fresh investigation to the appropriate jurisdiction.
- Can a trial court summon an accused person while simultaneously ordering a fresh investigation into the same case?
- Does a trial court have the jurisdiction to summon an accused when no formal challan has been submitted to it?
- Is an order for the issuance of non-bailable warrants sustainable if the underlying order summoning the accused is found to be illegal?
- Section 5, Pakistan Criminal Law Amendment Act 1958
ORDER
This criminal revision petition is directed against the orders dated 02.07.2013, 11.09.2013 and 04.12.2013 passed by the learned Special Judge Anti-Corruption, D.G. Khan Division, whereby on the one hand, the Court summoned the petitioners to face the trial in case FIR No. 18/2009 but on the other hand directed the Circle Officer A.C.E.
Dera Ghazi Khan to conduct fresh investigations in the case.
2. The petitioners and 10 others were charged for commission of the offence as reported through FIR No. 18/2009 and the police after investigation recommended the case for cancellation and placed the report before the Court when the Court proceeded to pass the impugned order dated 2 7.2013 and the subsequent orders for issuance non-bailable warrants of the petitioners for procuring their attendance.
3. Alter hearing the learned counsel for the parties and perusing the record, it is found that the learned Court below blow hot and cold in the same breath while passing the order dated 02.07.2013.
In the first instance, the Court found that prima-facie there was sufficient material on the record to proceed against the culprits and did not agree with the cancellation report prepared by the police but in the same breath the Court sent the matter to the Circle Officer for investigations under Section 5 of the Pakistan Criminal Law Amendment Act, 1958. The jurisdiction exercise by the Court in passing the impugned orders dots not vest in it at all. The Court was required to either agree or disagree with the cancellation report with the direction to I.O. for submission of the challan but it does not lie in the mouth of the Court to summon at that stage the accused of the case when the challan was not before it. Similarly , the Court has no jurisdiction to pass an order for summoning of the accused at the stage when it remitted the case to the Circle Officer for investigations because there was no case before the Court to deal with it. In both situations, when the case is not before the Court then how a Court can summon the accused of the FIR. In this scenario, subsequent orders issuing non-bailable warrants in consequence of order dated 2.7.2013 are also illegal and not sustainable for the reasons stated above. So, the orders passed by the Court below suf fer from patent illegality , thus, are liable to be set-aside.
4. For the foregoing reasons the petition in hand is allowed and the order dated 02.07.2018 is set-aside to the extent of summoning the accused of the FIR in the Court for facing trial in the case. Rest of the order for remitting case to the Circle Officer A.C.E. for investigations afresh is maintained with modification that under the law, the case can be sent to that Circle Officer in whose jurisdiction the offence was committed and in the present case, the offence was committed within the jurisdic tion of Circle Officer, A.C.E. Muzaf fargar h therefore the case-be sent to the Circle Officer Muzaf fargarh for investigations afresh. In consequence of partial setting aside of order dated 02.07.2013, the subsequent orders dated 1 1.09.2013 and 04.12.2013 are also set-aside.