KHADIM HUSSAIN Versus STATE

A case under section 409, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 was registered at Police Station Anti-Corruption Establishment, Sialkot against Nur Elahi son of Amir Din and Khadim Hussain son of Rehmat Ali, on 29-9-1980. After completion of investigation and procurement of sanction for prosecution, challan was submitted to the Court of Rao Iqbal Ahmad Khan, Special Judge, Anti-Corruption, Lahore against both the accused in January, 1984. Both appeared before him on 24-1-1984. After recording evidence and statements of the accused, Rao Iqbal Ahmad Khan convicted both of them under section 409, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and awarded sentences as follows:--

U/s. 409, P.P.C.: Each to undergo R.I. for 6 months.

U/s. 5(2)47: Each to pay a fine of Rs.5,000 in default whereof to suffer further R.I. for 3 months each.

Out of the fine, on recovery, a sum of Rs.6,000 was directed to be returned to the Union Council, Musapur.

2. Khadim Hussain filed Crl. Appeal No.104/87 while Nur Elahi filed Crl. Appeal No.138/87. As both the appeals have arisen out of the same judgment, they are being disposed of together.

3. Learned counsel for the appellants without going into the merits of the case raised a preliminary objection, in that, they contended that Rao Iqbal Ahmad Khan was posted as Special Judge, Anti-Corruption, Lahore and had no jurisdiction to try the cases pertaining to Gujranwala Division, of which Sialkot district forms part. In support of the plea, learned counsel for the appellants referred to section 4(1) of the Pakistan Criminal Law Amendment Act, 1958, which reads as follows:---

"4.---(1) A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cognizance of any offence committed or deemed to have been committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer."

Learned counsel also placed reliance on unreported judgment of this Court in Crl. Appeal No-447 of 1988, wherein it was held that the recording of evidence by a Special Judge who had not been notified for the district to which the case pertained, was not a lawfully recorded evidence. In that case, learned Single Judge of this Court set aside the conviction and sentence of the appellant and remanded the case.

4. Mr. Farooq Bedar, Additional Advocate-General did not contest the proposition that a Special Judge can't try the cases of the District for which he has not been notified to be the Special Judge, Anti-Corruption. He, however, submitted that any Special Judge of a particular Division can be notified to try the cases of the other Division or District.

5. Rao Iqbal Ahmad Khan was posted as Special Judge, Anti? Corruption, Lahore vide Notification No.S.V.1-6/81, dated 12-9-1982 issued by the Government of the Punjab, Services and General Administration Department, vice Ch. Rashid Ahmad, who had proceeded on ex-Pakistan leave. Ch. Rashid Ahmad had been posted as Special Judge, Anti-Corruption, Lahore vide Notification No.9 (1) SO(B&C)/80, dated 5-8-1980 by the Government of the Punjab, Home Department. Vide same notification he had been conferred the jurisdiction to try the cases pertaining to Lahore, Gujranwala, Sheikhupura, Kasur and Sialkot districts. Since Rao Iqbal Ahmad Khan had been posted vice Ch. Rashid Ahmad, he would be deemed to have the jurisdiction to try the cases of the districts, which Ch. Rashid Ahmad was trying.

6. Vide Notification No.9(1) SO(B&C)/80, dated 1-7-1982, issued by the Government of the Punjab, Home Department, Ch. Muhammad Islam had been notified to be Special Judge, Anti-Corruption-I, Lahore. Vide same notification he was conferred the jurisdiction to try the cases pertaining to Gujranwala Division.

7. Vide Notification NO.SV.1-6/81, dated 15-1-19tH, Sn. SdGCu rtnmau, District and Sessions Judge, Sialkot was posted as Special Judge, Anti? Corruption, Lahore vice Ch. Muhammad Islam.

8. Sh. Lutfur Rehman was appointed Special Judge, Anti-Corruption, Gujranwala Division with Headquarters at Lahore vide Notification No.9 (1)SO(B&C)/80, dated 20-7-1983. He continued holding the post till 8-7-1989.

9. The case in hand was put to Court for trial in January, 1984 and the judgment was delivered on 9-2-1987. It is apparent from the above resume that for the said period the charge of the Special Judge, Anti-Corruption, Gujranwala Division of which Sialkot District forms part, lay with Sh. Lutfur Rehman. As such Rao Iqbal Ahmad Khan had no jurisdiction to try the cases pertaining to Sialkot District or any other district of Gujranwala Division. It is worth noticing that the case which was remanded vide judgment in Crl. Appeal No.447/88, on the ground that the evidence of the same was recorded by Rao Iqbal Ahmad Khan, who had no jurisdiction to do the same, also pertained to the period between 1984 and early 1988.

10. The net result of the above resume is that Rao Iqbal Ahmad Khan had no jurisdiction to try the cases pertaining to Sialkot District, triable by a Special Judge, Anti-Corruption. The impugned judgment, there, was delivered without jurisdiction. The same is set aside and the case of the appellants is remanded for trial afresh by a Court of competent jurisdiction.

The appellants are already on bail. They were on bail even when the impugned judgment was announced. They shall continue to remain on bail, provided they furnish fresh bail bonds in the sum of Rupees twenty thousand each with one surety each in the like amount to the satisfaction of the Assistant Commissioner, Sialkot, with the undertaking to continue appearing before the Judge to whom their case is entrusted for trial.

(NOTE).---Mr. Khalid Javed Saleemi, Advocate has stated that Malik Muhammad Afzal is working as Special Judge, Anti-Corruption, Gujranwala Division, with Headquarters at 40-A, Lawrence Road, Lahore. The office shall send the record to his Court).

N.H.Q./K-54/L ??????????????????????????????????????????????????????????????????????????????????? Case remanded.