1. ' Both the above referred cases are being disposed of through this common judgment for the reason that identical legal points are involved therein.
2. ' Mr. Ziaul Haq Makhdoom, Advocate was heard on 23-2-2004, 5-3-2004 and 15-3-2004 for the applicant in Criminal Miscellaneous No. 322 of 1995 while Mr. Ilyas Khan, Advocate was heard for applicant Criminal Revision No.53 of 1995 on 22-3-2004; Mr. Mahmood Alam Rizvi was heard for the State on 23-2-2004.
3. ' Applicant Kanjimal has asserted in his Criminal Revision Application No. 53 of 1995 to the effect that F.I.R. No. 6 of 1992 was registered against Faisal Ahmed, Mirza Sajid Mahmood and Imtiaz Ahmed for offences under sections 406/419/402/ 468/471 P.P.C. Read with section 5(2) of Prevention of Corruption Act II of 1947, Imtiaz Ahmed then posted as Telephone Monitor in Test and Complaint Department of Defence Telephone Exchange, Karachi during the period from June, 1989 to December, 1990 who, in conspiracy with absconding accused persons namely Fazal Ahmed and Mirza Sajid Mahmood, forged the documents for installation of two telephone connections which were thereby got converted into category of "International Subscriber's Dialing"; outstanding bill for Rs.1,77,660.75 and Rs.4,75,118.75 respectively was not paid by the subscribes/absconding accused persons and thereby they were sent up to the Court of learned Special Judge for committing the above stated offences. It is further contended that charge was framed by learned trial Court against accused Imtiaz Ahmed on 10-5-1993, whereafter the evidence of applicant Kanjimal was recorded in the case as a prosecution witness No.3; on completion of his examination, the prosecutor moved an application praying therein before the trial Court that the applicant be joined as a co-accused in the said case; learned Presiding Judge of the trial Court passed orders on the said application impugned herein and took further steps by sending letters to the "competent authority" for sanction to prosecute the applicant, which was not received till 11-6-1995, and therefore the Presiding Judge "presumed the sanction under section 6(5) of Pakistan Criminal Law Amendment Act 1958"; the applicant feels aggrieved against such orders of the trial Court and filed his criminal revision application with a prayer to quash the said orders dated 14-4-1993 and dated 11-6-1995 respectively.
4. ' In Criminal Miscellaneous Application No. 322 of 1995 applicant Mati-ur-Rehman contended that one Abdul Quddus made a written complaint on 25-4-1991 against illegal conversion of non-STD telephone connection into STD connection, and thereby unauthorized use of the telephone connection was made; bills against illegal and unauthorized use thereof were not paid; F.I.R.
5. Bearing No.05 of 1992 was got registered on 7-3-1992, wherein it was complained that complainant Abdul Quddus was subscriber of non-STD Telephone bearing No 545114 installed at his residence bearing No. 457, Lane No.7/A, Akhtar Colony, Karachi, which connection was got illegally converted from non-STD telephone to ISD category on the basis of some forged application in the name of subscriber Abdul Quddus, and was got shifted to-A/1/60 2nd floor, Akhtar Colony, Karachi; such illegal use of subscriber's International Dialing facility of the telephone connection caused the bills for Rs.1.09,889 and Rs.2,79,678, for the months of January and February, 1991, respectively, and thereby the accused of the said case drew illegal pecuniary gain for themselves and correspondence unlawful loss to the Government exchequer without the consent, knowledge or permission of the actual subscriber.
6. ' The investigation into the allegations of the said F.I.R. Was carried out whereafter the chailan was submitted before the learned Special Court, Karachi under Prevention of Corruption Act.
7. ' After the formal charge was framed against accused of the said case, applicant Mati-ur-Reinnan examined himself as one of the prosecution witnesses on 4-2-1993 and 9-3-1993; whereafter some other prosecution witnesses were also examined in the said case; on 22-7-1993 a notice was issued by learned trial Judge against applicant Mati-ur-Rehman thereby calling upon him to show cause as to why he should not be joined as an accused; applicant submitted reply to the said notice on 28-8-1993 whereafter, vide order dated 9-9-1993, the learned Special Judge passed the order to the effect that present applicant was prima facie required to be joined as an accused in the said case and issued a letter to the "competent authority" for sanction to prosecute the applicant; but no such sanction was granted by the "competent authority " ; therefore , on 28-6- 1995, learned trial Court ordered, "that the sanction be presumed to have been accorded" and the applicant herein was directed to appear on 2-7-1995 before the trial Court to face the trial in the said case.
8. ' Learned counsel appearing for applicants in both the case argued that the trial Court constituted for the purposes, the Prevention of Corruption Act has no jurisdiction to take cognizance of the offence against the applicants (in both the cases respectively) in the absence of a complaint or report made by a police officer in terms of section 4 of the Pakistan Criminal Law Amendment Act 1958; hence the cognizance of the offence and contemplated trial of the applicant by the learned Special Judge is without jurisdiction; further that there is no provision of law to empower learned Special Court to direct for joining a person as an accused on the bases of impression arising from the evidence of persecution and, therefore, the order dated 9-9-1993 and order passed subsequent to the said dated are entirely without jurisdiction and liable to be quashed.
9. ' Learned counsel appearing for applicants in both the cases referred to section 4(1) of Pakistan Criminal Law (Amendment) Act 1958, which read as under:-- "4. Jurisdiction of Special Judges and cognizance of cases by them. (i) 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 or such facts made by any police officer."
10. Learned counsel have argued that it is by now a settled principle of law that Special Judge having been appointed and to work under the above quoted provisions of law has no authority/power to suo motu take cognizance of the offence, and relied upon "Waqar Ilyas and another v. The State"
11. PLD 1993 Quetta 49.
12. ' Learned counsel also cited "Shafiq Alam Faruqui v. State" 1996 PCr.LJ 2243 (Karachi) wherein a learned Division Bench of this Court recorded the following observations at page 2246 as under:-- "It is pertinent to note that both the appellants who have been convicted and sentenced by the learned Presiding Officer were not named in the F.I.R. Or challan as accused persons but their names were mentioned as prosecution witnesses. During the trial they were joined as accused persons on suspicion of involvement in the case. It seems that the action of the learned Presiding Officer in joining these persons in the trial proceedings as co-accused purported to have been taken under section 351, Cr.P.C. This section empowers the Court to detain any person who attends a criminal Court for the purpose of enquiry into or trial of any offence of which the Court can have cognizar.. Subsection (2) thereof provides that when the person is detained, after trial has commenced, proceedings in respect of such person shall be commenced afresh and the witnesses are to be reheard. In the instant case the same was not done.
13. ' It was not in dispute that Mirza Muhammad Ali was proceeded against under sections 468/471/ 406, P.P.C. After the prosecution evidence against him had been recorded. The provisions of section 351(2), Cr . P. C . Are mandatory, clear and specific. When the appellants were impleaded under sections 468/471 and 103, P.P.0 . , 34, P.P. C . And 109, P.P.C., the trial against them had to commence afresh and witnesses reheard. Non-compliance with these provisions vitiated the trial, as the Ordinance has prescribed for procedure of trial of offences under the Ordinance. Hence the provisions of section 351(2), Cr.P.C. Would be attracted and section 5(1) of the Ordinance does not override them. We hold that the trial of the appellants without compliance of section 351(2), Cr.P.C.
14. Was illegal and vitiated.
15. ' Section 5(1) of the Ordinance empowers the Special Court to take cognizance of any schedule offence upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer. We are of the humble opinion that this Special Court has to act in accordance with the provisions of section 5(1) of the Ordinance and the Special Court has not to follow or to act in accordance with the provisions of section 190, Cr.P.C. It appears that section 190, Cr.P.C. Provides three modes for taking cognizance of an offence, i.e. Clauses (a),
(b) and (c). Section 5(1) of the Ordinance has provided only two of these modes, i.e. (a) and (b).
16. The Legislature has deliberately omitted clause (c). It is therefore, clear that the Special Court cannot take cognizance on its own information. In the instant case the two appellants were not named as accused in the challan submitted by the F.I.A. Nor there was a direct complaint in respect of them. It would be observed from a reading of section 190(1), Cr.P.C. That only a District Magistrate or a Sub-Divisional Magistrate has statutory powers to take cognizance of an offence. In all other cases the Magistrate has to be especially empowered on this behalf. It would be observed from a reading of section 5(1) of the Ordinance that the Special Court has statutory powers to take cognizance of an offence only (a) upon a report in writing and (b) upon a report in writing of such facts. In other words it cannot take cognizance upon information received from any person or upon his own knowledge or suspicion.
17. ' It should be observed that in the case of Abdus Sattar Molla processes were issued against the appellant by the trying Magistrate after hearing two witnesses and before the conclusion of the trial but even in that case our Federal Court has led to observe that it was beyond the jurisdiction of the transferee Magistrate. In the instant case, the evidence of five prosecution witnesses was recorded including the appellants. We are of the view that there is no power given to the Special Court to take cognizance of the offence upon his own knowledge or suspicion. In this view of the matter, in our opinion, the learned Presiding Officer has no jurisdiction to detain and/or take cognizance of the offence against the appellants."
18. ' So, also the learned counsel "Naseebullah Khan and another v. The State" PLD 1986 Karachi 417 , wherein a learned Division Bench of this Court recorded the following observations at page 427 which reads as under:-- "Needless to mention again that both appellants, who have been convicted and sentenced by the trial Court were not named in F.I.R. Or in challan as accused persons but subsequently during the proceedings in the trial Court were joined as accused persons on suspicion of their involvement in the case. Action of the trial Court in joining these persons in the trial proceedings as co-accused purports to have been taken under section 351, Cr . P. C . , which empowers the Court to detain any person who attends a Criminal Court although not under arrest or upon a summons, for the purpose of enquiry into or trial of any offence of which the Court can take cognizance. Subsection
(2) of section 351, Cr.P.C. Further provides that when the detention takes place, after trial has commenced, proceedings in respect of such persons shall be commenced afresh and the witnesses are to be reheard. Since the trial Court is Special Court constituted under the provisions of Offences in respect of Banks Ordinance, 1984, it is empowered under section 5(8) thereof to follow the procedure prescribed by the Court for trial of cases by Magistrate, where no such procedure has been prescribed in the said Ordinance. If section 351(A), Cr.P.C. Is read very carefully, it would appear beyond doubt that action thereunder is closely connected with and separable from section 190, Cr.P.C. Which empowers the Magistrates to take cognizance of offences. In this very context of taking cognizance of offences, section 5(1) of the said Ordinance empowers Special Court set up under that Ordinance to take cognizance of any scheduled offence upon receiving a complaint of the facts which constitutes such offence or upon a report in writing of such facts made by any Police Officer. In the Ordinance, therefore, scope for taking cognizance is specifically provided for the Special Court, hence only this provision is to be acted upon and not section 190, Cr.P.C. Criminal Procedure Code shall apply only where Special law is silent ai2d does no contain specific powers or procedure. Now if comparative study is made of section 190, Cr.P.C. And section 5(1) of the said Ordinance, it will appear that under the former cognizance can be taken by the Magistrate in three different ways. Firstly as provided in subsection (1)(a) upon receiving a complaint of facts which constitute such offence, secondly as provided in (b) upon a report in writing of such facts made by any Police Officer and thirdly as provided in (c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion that such offence has been committed. Now we turn to section 5(1) of the said Ordinance which empowers Special Court to take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any Police Officer, powers specifically given to Special Court are fully covered by paragraphs (a) and
(b) of section 190(1), Cr.P.C. As stated above and paragraph (c) thereof has been omitted in the said Ordinance, which fact is very obvious on the face of it. The' intention of the Legislature is, therefore, very clear that on the Special Court the said Ordinance has conferred powers of taking cognizance only in case of a direct person who is so joined as accused in the case on the order of the Magistrate, has to be informed that he is entitled to have the case tried by another Court. This provision is mandatory in nature and word "shall" has been used. Now since Special Court has been constituted under the Special Law and is the only one Court of its kind and there are no other such Courts available within that territorial jurisdiction, hence in such circumstances the case could no't be transferred to any other Court and that is why, perhaps for that reason, while defining powers of Special Court under section 5 of the said Ordinance for taking cognizance of scheduled offences.
19. Legislature has on purpose omitted suo motu powers for taking cognizance contemplated under section 190(1)c, Cr .P.C . "
20. ' Thus learned counsel appearing for applicants in both the cases have validly argued that the Special Court had no power to take suo Motu action for the purpose of directing a prosecution of a witness of a pending case before him, to be joined as an accused for any reason.
21. For the aforesaid reasons the criminal revision application is converted into miscellaneous application, and both the criminal miscellaneous applications were allowed by a short order dated 22-3-2004 and impugned orders were thereby quashed, above are the reasons for the said short order.