Through this application under section 497(5), Cr.P.C. The petitioner seeks cancellation of bail of respondent No.1Ghulam Abbas as he has been granted bail by the learned Additional Sessions Judge, Vehari vide order dated 24-11-2003 in case F.I.R. No.46 of 2003, dated 11-11-2003 registered under section 161, P.P.C. Read with section 5(2)/47, P.C.A. At Police Station Anti-Corruption, Multan on the application of the petitioner.
2. The brief facts as per the F.I.R. Are that Niaz Ahmad complainant was resident of Khai Pir and his father out of his land measuring 52 Kanals wanted to distribute the same through Tamleek amongst his three sons. The complainant alongwith his brothers and father went to Ghulam Abbas, Patwari respondent No.1, where Muhammad Din, Girdawar was also present. Respondent No.1 referred them to Muhammad Din, Girdawar. He asked the respondent about the Government fee to execute the same who replied that it would be Rs.2,000. On this respondent No.1 and Muhammad Din asked the complainant to give an amount of Rs.3,500 for the work. It was apprised that share of Naib Tehsildar was also included. However, Girdawar demanded further amount of Rs.500. They kept on sitting but Tehsildar did not come. Then on the third day they again went to the Patwari and paid Rs.3,500 in the presence of. Muhammad Bilal. Respondent No.1 entered the mutation and also got thumb-impression of the petitioner's father but the same was not sanctioned and respondent No.1 further demanded Rs.1,500 for himself as well as for Naib Tehsildar. Hence, the petitioner informed the Anti-Corruption Department and ultimately the above-said case was registered, raid was conducted and tainted amount was recovered from the petitioner.
3. Learned counsel for the petitioner contends that learned Additional Sessions Judge was not empowered to grant bail to respondent No.1 as per Notification issued by the Government of the Punjab, dated 12-4-1975 in supersession of earlier Notification dated 27-7-1961 and all previous notifications in this behalf through which the Special Judge Anti-Corruption and their territorial jurisdiction has been defined. It is further contended that under section 4 of Pakistan Criminal Law Amendment Act the Senior Special Judge Anti-Corruption" is empowered to transfer the case to any other Special Judge. It is further contended that in the comments it has wrongly been relied upon by the learned Additional Sessions Judge, Vehari that he is empowered to grant bail under Notification dated 27th of July, 1961, which has already been superseded by the latest notification and the same has been taken into account by the learned Additional Sessions Judge and the learned Sessions Judge, Vehari. It is further contended that the case-law cited by the learned Additional Sessions Judge and learned Sessions Judge is not applicable to the facts and circumstances of the case as in all the cited cases the accused were employees of Central.
Government, triable by the Central Special Judges and Notification dated 12-4-1975 was not applicable to the extent of those accused. It is further contended that the petitioner has been granted bail by the learned Additional Sessions Judge in a clandestine manner.
4. Learned counsel appearing on behalf of respondent No.1 opposes this application on the ground that the learned Additional Sessions Judge, Vehari was empowered to grant bail as the learned Special Judge Anti-Corruption was on leave from 15-11-2003 to 25-11-2003 and the application was moved before the learned Sessions Judge on 20-11-2003, which was accepted on 24-11-2003 during the leave period of the Special Judge Anti-Corruption, Multan. It is further contended that the case is false being registered against respondent No.1 with mala fide intention and ulterior motive, which is clear from the fact that Mst. Irshad Mai was closely related to the complainant/petitioner who had taken the possession illegally and approached respondent No.1 to enter his possession in the IChasra Gardawri, which was refused by respondent No.1 and two F.I.Rs.
Were also lodged against said Niaz Ahmad on the statement of Mst. Irshad Mai. It is further contended that the case-law relied upon by the learned Additional Sessions Judge in the comments is applicable to the facts and circumstances of the present case. It is also contended that section 161, P.P.C. Is punishable with three years R.I. And section 5(2) of Prevention of Corruption Act, 1947 is also punishable with seven years R.I. Or fine, hence the bail granting order is just and proper.
5. I have heard the learned counsel for the parties and also perused the record as well as the parawise comments submitted by the learned Additional Sessions Judge and learned Sessions Judge, Vehari. The latter have taken the specific stand that under Notification No.1/3/59, dated 27th July, 1961 the learned Additional Sessions Judges are Ex-Officio Special Judge and can grant bail, which has been rightly granted to him. They have also placed with their comments the case-law i.e.:--
(i) 1989 PCr.LJ 2035.
(ii) PLD 1990 Peshawar 76.
(iii) PLD 1990 Peshawar 79.
6. I have perused the case-law cited by the learned counsel for the respondent No.1 and also placed with the comments by the learned Additional Sessions Judge and learned Sessions Judge, Vehari. Both the learned Additional Sessions Judge and learned Sessions Judge have omitted to take into consideration the latest Notification No.1.3(1)/75, dated 12-4-1975 issued by the Government of Punjab, Home Department, through which, the jurisdiction of the Special Judges appointed by the Government of Punjab has been defined. According to this notification all the previous notifications including the Notification dated 27th July, 1961 were superseded. According to the same, the Special Judge Anti-Corruption, Multan is Special Judge Anti-Corruption for District Multan, Sahiwal, Muzaffargarh, D.G. Khan, Jhang and Lyallpur and District Vehari was included in Multan then. After the perusal of the said notification the stand taken by the learned Additional Sessions Judge and learned Sessions Judge that they were Ex-Officio Special Judges stands falsified. In section 2 of Pakistan Criminal Law Amendment Act, 1958 "appropriate Government" has been defined in clause (a) "Public Servant" in clause (b) and "Special Judge" has been defined in clause (c). Under section 4(3) ibid "An offence shall be tried by the Special Judge within the territorial limits of whose jurisdiction it was committed or deemed to have been committed....".
Subsection (1) to section 5 of Act, 1958 provides that "...The offence specified in the schedule shall be triable exclusively by a Special Judge." Subsection (7) further empowers the Special Judge also to charge with and try other offences not so triable with which the accused may, under the provisions of the Code of Cr.P.C. 1898, relating to the joinder of charges while trying an offence under this Act. Section 11 relates to bail and imprisonment. Under section 10(3) this Court is empowered to transfer any case' from the Court of a Special Judge to the Court of another Special Judge.
7. From the aforesaid discussion it is clear that learned Sessions Judges and Additional Sessions Judges are not empowered, to take cognizance in the matter/offences specified in the schedule.
Hence, bail could not be granted even in the absence of the learned Special Judge, Multan due to his leave by the learned Additional Sessions Judge, Vehari as he was no more ex-officio Judge. As in Multan only one Special Judge is working and there is no Senior Special Judge as defined in section 4 of the Act, 1958, petition might be filed before this Court, which could see propriety of its transfer under section 10(3) of the Act to any other Special Judge for its decision on merit.
8. The case-law relied upon by the learned Additional Sessions Judge and learned Sessions Judge is not applicable to the facts and circumstances of the present case. "Muhammad Azim Ullah v.
The State" 1991 PCr.LJ (Note) 95 relates to grant of pre-arrest bail. The other case relied upon by the learned Sessions Judge and learned Additional Sessions Judge reported in "Ghulam Sadiq v. The State" 1989 PCr.LJ 2035 relates to WAPDA employees, which was triable by Special Judge Central and it was also case of bail before arrest, hence, the Notification issued in 1975 was not applicable to the said case. Similarly cases reported in PLD 1990 Peshawar 76 and PLD 1990 Peshawar 79 are also not applicable to the case in hand as the same also relate to bail before arrest and the forfeiture of bail bond. On the strength of these cases it cannot be held that in absence of Special Judge, learned Sessions Judge and learned Additional Sessions Judge have the powers to grant the bail to the accused. In all these cases notification issued in 1975 has not been considered.
Moreover, in these cases ad interim pre-arrest bail was granted by referring the matter to the Special Judge which orders were set aside but in the present case bail after arrest has been granted to respondent No.1 by the learned Additional Sessions Judge, Vehari, who was arrested on 12-1-2003 and tainted notes (Rs.1500) were recovered by the Magistrate who was supervising the raiding party on the application of the petitioner and bail application was moved on 20-1-2003 which was granted - on 24-1-2003. The learned Additional Sessions Judge seems to have shown some urgency in disposal of the bail application of respondent No.1 unnecessarily without determining that whether he was empowered.
9. For the foregoing discussion, it is held that the order for grant of bail to respondent No.1 by learned Additional Sessions Judge, Vehari on 24-11-2003 was without jurisdiction. Hence, the same is recalled and respondent No.1 is directed to be taken into custody. I have intentionally not commented upon merits of the case lest it may prejudice the case of either party before the proper forum. Respondent No.1 can approach the Court of first instance for grant of his bail, if so advised.
' The petition stands accepted.