' Through this Constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have sought for the quashment of order dated 19-8-2003 passed by learned Magistrate section 30, Multan.
2. Brief facts of the case giving rise to this Constitutional petition are that a case F.I.R. No.4/03, dated 27-2-2003 was registered at Police Station FIA, Multan against one Asif Ali Shah, Cashier of PICIC Commercial Bank, Multan regarding embezzlement of Rs.42,30,000; that during the investigation it came to the knowledge of higher authorities of the bank that Mirza Naseer Baig, Safdar Abbas and Khalil Ahmed have also embezzled an amount of Rs.42,30,000 through fictitious .Receipts. It was further found that some fictitious guarantee of Rs.50,00,000 was also issued whereupon a case F.I.R.
No.20 of 2003 was registered on 4-8-2003 against. Respondent No.2 and others on the written complaint made by Rana Alamgir Khan, SVP, PICIC Commercial Bank, Multan; that the accused were arrested and they were produced before the Ilaqa Magistrate on 11-8-2003 and their custody was handed over for 14-8-2003. On 15-8-2003 the accused were granted remand for four days i.e. 15-8-2003 till 18-8-2003; that on 19-8-2003 petitioner No.2 submitted an application before the learned Magistrate for grant of judicial remand of the accused as the investigation of the case was not completed; that on the said date, the learned Magistrate without examining the record and evidence available on the file declared the respondent No.2 innocent and discharged him from the case and passed the impugned order, hence this Constitutional petition.
3. Learned counsel for the petitioners vehemently argued that the impugned order passed by the learned Magistrate is against law and facts; that respondent No.2 is nominated in the F.I.R. And there is sufficient matc-rial available on the record to connect him with the crime complained; that the investigation of this case is under progress; that the learned trial Court was not competent to discharge respondent No.2 as hewas functioning as a Duty Magistrate and while passing the impugned order he has given the opinion on merits. It is lastly contended that the impugned order passed by the learned Magistrate to the extent of respondent No.2 may be set aside.
4. Conversely, the learned counsel for respondent No.2 strongly repelled the contentions raised by the learned counsel for the petitioners contending that respondent No.2 has been falsely implicated in this case; that nothing has been recovered from him during the investigation of more than 13 days; that there is nothing on the record which connects respondent No.2 with the crime complained; therefore, the learned trial Court has not committed any irregularity while passing the impugned order which calls-for no interference by this Court.
5. Heard both the parties. Record perused.
6. It evinces from the record that a case F.I.R. No.4 of 2003, dated 27-2-2003 was registered at Police Station FIA, Multan against one Asif Ail Shah, Cashier of PICIC Commercial Bank, Multan regarding the embezzlement of Rs.42,30,000. During the investigation it transpired to the Bank Authorities that respondent No.2 alongwith others had also embezzled an amount of Rs.42,30,000 by way of fictitious receipts and had also issued fictitious guarantee of Rs.50,00,000 whereupon a case F.I.R.
No.20 of 2003 was registered against respondent No.2 and others on 4-8-2003. Respondent No.2 and his co-accused were arrested and were produced before the learned Illaqa Magistrate when they were granted physical remand for four days. After the expiry of physical remand, petitioner No.2 submitted an application for the grant of judicial remand of the accused but instead of doing so the learned Magistrate discharged respondent No.2. The controversy between the parties relates to this effect that as to whether the learned Magistrate was within jurisdiction to pass such- like order in the instant case which is exclusively triable by the Special Court in view of the Special Court Ordinance (IX) of 1984. There is no denying the fact that the learned Magistrate under subsection (2) of section 167 of Cr.P.C. May authorize the detention of the accused whether he has or has not jurisdiction to try the cases of the accused in such custody as such Magistrate thinks fit.
The provisions of the aforesaid section further provide that if the Magistrate has no jurisdiction to try the case or sent it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. A bare reading of the aforesaid section reveals that in case whenever an accused is produced before the Magistrate for the purpose of remand in case of lack of his jurisdiction, the recourse to a Magistrate is provided to forward the accused to a Magistrate having the jurisdiction. In the instant case though respondent No.2 was produced before the learned Magistrate with the request made by the police for his judicial remand but instead of doing so he ventured to discharge respondent No.2 undoubtedly in such-like cases, the exclusive jurisdiction is vested with the learned Special Court.
7. As discussed above, the recourse to the learned Magistrate was to pass an order for producing the respondent No.2 before the Court of competent jurisdiction. In this view of the matter, in my view, the learned Magistrate was not vested with the jurisdiction to pass such-like order in the absence of any request made by the police for the purpose under the relevant provisions of section 173, Cr.P.C. Moreover in the circumstances mentioned above, he was not competent to touch the merits of the case, which is my view is the exclusive jurisdiction of the learned Special Court to take cognizance of the offence on police report. Additionally where a Special Court under the Act takes, cognizance of the offence directly as a Court of original jurisdiction in the same manner as a Magistrate is empowered to take cognizance of the offence under section 190, Cr.P.C.
8. In view of what has been discussed above, the impugned order passed by the learned Magistrate suffers from illegality and also without jurisdiction which calls for interference by this Court. Resultantly the instant Constitutional petition is allowed and the impugned order passed by the learned Magistrate to the extent of respondent No.2 is set aside.