MUHAMMAD SALEEM JESSAR, J.---Through these bail applications, the applicants Mst. Tasleem Kousar, Mst. Suriya Anjum Arain, Mst. Bilqees Mughul and Mst. Gul Nasreen, seek their admission on pre-arrest bail in Crime Nos. 03/2020, 04/2020, 05/2020 and 06/ 2020 registered at Police Station FIA, Crime Circle,. Sukkur, for offence under sections 419, 420, 468, 471, 109, P.P.C. ,By this common Order, I will dispose all these bail applications as same question of law and facts is involved in these cases.
2. The crux of prosecution in all the cases is that the applicants who are working as Higher Education Teachers
(HSTs) and Oriental Teachers (OT), respectively, in different Schools with department of Education, Govt. of Sindh. During disbursement of Benazir Income Support Program (BISP) they have fraudulently received funds by concealing themselves to be government servants. After registration of cases, investigation was assigned to different Investigating Officers. In Cr. B.A.No.S-318 of 2020 the applicant moved her application being Cr.
B.A.No.S-559/2020 for anti-cipatory bail before court of Sessions Judge at Jacobabad, which was assigned to Additional Sessions Judge-II, Jacobabad who after hearing the parties dismissed the bail application of Mst.
Suria on 12.6.2020. It will be appropriate to reproduce the para-5 of the said Order, which reads as under:- "I have considered above contentions. During course of arguments, the learned counsel for applicant/accused submits that, applicant/accused is Government teacher, serving in education department of Sindh Government.
I have considered above contentions from the facts of FIR, it appears that, Federal Government Funds have been allegedly misappropriated/detained by accused although she is serving in Grade-18, whereas, such funds were meant for destitute women, the sections 419, 420, 468, 471 cited in FIR of FIA Crime Circle Sukkur are the scheduled offence as mentioned in the schedule of Ordinance of 1961, West Pakistan Anti-Corruption Establishment Ordinance 1961. Apart from it, the applicant/accused is a Government employee, the allegation against her are about cheating while getting Federal Government funds for Benazir Income Support Program, meant for poor and need women although applicant is in Grade-18 Government service section 5(2) of the Prevention of Corruption Act, II of 1947 appears attracted, since the Federal Government Funds are allegedly received by cheating from which criminal misconduct, as defined for offence under section 5(2) of above Act also appears attracted, in these circumstances, the ordinary court/Magistrate has no jurisdiction to take cognizance and entertain the FIR of the FIA Crime Circle Sukkur. Similarly, the Sessions Court/Sessions Judge has also no jurisdiction to entertain the bail application, when for trial of scheduled offences, there is Special Court designated. In the background of above discussion, instant bail application is dismissed for want of jurisdiction. The learned Civil Judge and JM-II, Jacobabad is directed to return FIR to FIA Crime Circle Sukkur immediately, to be submitted to the concerned court having jurisdiction. The applicant/accused is at liberty to seek remedy from the concerned court of Special Judge Anti-Corruption Federal, if he so desires. Copy of this order be communicated to the FIA Crime Circle Sukkur and such copy be communicated to the learned Civil Judge and JM-II, Jacobabad".
3. After return of papers by, the court concerned, the 1.0., submitted same before Special Judge, Anti Corruption (Central) at Hyderabad, who has also refused to accept the charge sheet and returned the same to I.O. vide order dated 1.7.2020. It will also be conducive to reproduce the contention of Order, which reads as under:- "I have heard I.O. and AD(L) so also perused the interim challan with police papers of case. From the perusal of record, it reveals that FIR and interim challan was submitted before Civil Judge and Judicial Magistrate, Jacobabad but the same was returned for want of jurisdiction after passing of order by learned Additional Sessions Judge-II, Jacobabad in a bail application submitted by accused Mst., Suriya Anjum. The learned Additional Sessions Judge-II has observed that section 5(2) of Act II of 1947 is attracted therefore, bail application was dismissed for want of jurisdiction and interim challan as returned for submission the same before this court. From the bear reading of FIR and material collected by the 1.0., it appears that accused Mst.
Suriya Anjum has not misused her official capacity she has concealed her facts official capacity and committed offence of cheating and forgery in a private capacity, therefore offence of misconduct punishable under section 5(2), P.C.A. 1947 is not attracted. The offence of misconduct punishable under section 5(2) PCA 1947 is only attracted when an accused has misused this power in official capacity and such fact is missing in the present matter. It means learned Additional Sessions Judge-II, Jacobabad has not applied Judicial mind while passing the order dated 12.6.2020. It is clear case of ordinary jurisdiction viz. Magistrate Trial /Sessions Trial as per second schedule of Criminal Procedure Code. It has also been pointed out by the learned AD (L) that so many FIRs of such nature have been registered at different regions of FIA and interim challans of such cases have already been accepted by the respective magistrate/ordinary courts on the ground that accused have committed offence of cheating and forgery in a private capacity by concealing their employment/government jobs.
In view of above facts and circumstances, the interim challan is returned to the I.O. along with police papers with the direction to submit the same before the court of law having jurisdiction"
4. Mr. Munir Ahmed Siyal, Assistant Director (Legal), FIA. Sukkur, submits that while confronting with different situations, he has filed Criminal Miscellaneous Application bearing No. S-346 of 2020, before a Bench of this Court at Sukkur, seeking indulgence, which is pending adjudication, hence, he prays for a date. He; however, admits that offence with which the applicants have been charged does not come within the ambit of prohibitory clause of section 497, Cr.P.C. and even after determination of the jurisdiction the applicants will be entitled for the bail. Learned Assistant Attorney General for Pakistan is also of the same opinion that the offence does not fall under the ambit of prohibitory clause of section 497, Cr . P.C.
5. Mr. Shakeel Ahmed G. Ansari, Advocate for the applicants in all the bail applications, submits that applicants are government servant and are ladies, if, the Bench of this Court decides/ determines accurate jurisdiction, even then the gravity of offence will not be enhanced hence, in such a situation unless the issue is decided by this Court, applicants may be enlarged on bail. He further submits that challan in respect of different FIR(s) has also been submitted by Assistant Director (Legal) before Civil Judge and. Judicial Magistrate-II, Shikarpur who after accepting challan has took cognizance of the cases; however, the Assistant Director (legal) or I.O. of the case has not challenged said order. He further points out that per allegation the applicants are alleged to have received amount out of Benazir Income Support Program (BISP) funds by concealing the factum of their being government servant. Mr. Ansari, by continuing his contentions has submitted that such allegation of the prosecution, if presumed to be true even then it does not constitute any offence within the purview of criminal misconduct as defined under section 5(2) of the Prevention of Corruption Act, 1947 (Act No.II of 1947) hence Mr. Ansari, emphasized that Special Judge, Anti Corruption (Central) Hyderabad has rightly refused to accept the challan and the Additional Sessions Judge-II, Jacobabad was not justified in returning the case papers to I.O. for submissions of same before the special court. He lastly points out that offence with which the applicants have been charged are not schedule offences, therefore, the challan filed by the I.0.1 Assistant Director (Legal) before Civil Judge and Judicial Magistrate-II, Shikarpur has rightly been accepted and according to him these cases are purely triable by the court of ordinary jurisdiction.
6. In rebuttal learned Assistant Attorney General for Pakistan and Assistant Director (Legal) FIA, submits that amount allegedly received by the applicants belongs to federal government and the FIRs have been registered by FIA police, subsequently, investigated by the FIA itself, therefore, offences involved, in view of admitted position of record may be tried by the Special Court, Anti-Corruption (Central). They further point out that applicants are also government servants; however, are working under the provincial government yet mere their being subordination under provincial government authority may not absolve their liability to be tried by the Special Court, Anti-Corruption (Central). They further submit that both the courts below (2nd Additional Sessions Judge, Jacobabad and Special Judge, Anti Corruption (Central), Hyderabad, have erred while deciding the fate of bail `application as well point of jurisdiction. According to them when the accused had surrendered before them (courts) they at-least should have accepted the interim challan instead of returning the police papers to I.O., hence, they oppose the bail applications.
7. Heard learned Counsel for the parties and perused the material available on the record.
8. Since the point for determination of jurisdiction is yet to be decided and/or it will be raised by the parties before the appropriate forum, therefore, I would not lay my hands to touch this aspect of the case, more particularly, when the issue involved is pending adjudication vis--vis Cr. Misc. Appin. No.S-346 of 2020.
9. Admittedly, the applicants are government servants and are ladies, therefore, question of their tampering with prosecution evidence, which are in possession of prosecution itself, does not arise. Moreover, the offence as shown pertains to year 2011/2019, whereas FIRs have been registered on 12.5.2020. The punishment provided by law for the sections applied in the present FIRs is also not beyond the scope of prohibitory clause, hence on that score alone case against the applicants requires further probe into their guilt. As far as determination of jurisdiction is concerned after decision of criminal miscellaneous application the punishment provided by law may not be enhanced, therefore, all the applications are allowed as their case is purely covered by subsection
(2) of section 497, Cr.P.C. Resultantly, the interim pre-arrest bail earlier granted to the applicants vide order dated 22.6.2020, is hereby confirmed on same terms and conditions.
10. It may be noted that since interim challan of the cases in Cr. Bail Applications Nos. 316, 317 and 319 has been filed before the Court of 2nd Civil Judge and Judicial Magistrate. Shikarpur on 28.5.2020 and later on its final report was also filed on 10.7.2020, therefore, applicants are directed to continue their appearance without fail before the said Court. As far as applicant/accused Mst. Suriya Anjum is concerned, after submission of challan/report under section 173, Cr.P.C., she has to be summoned by the I.O. as well as Court concerned, where the case against her is to be sent up for trial.
11. Copy of this Order be provided to the office of Assistant Director (Legal) FIA, Sukkur, for correspondence and compliance. Copy of order also be transmitted to 2nd Civil Judge and Judicial Magistrate, Shikarpur through learned Sessions Judge, Shikarpur, learned 2nd Additional Sessions Judge Jacobabad as well as learned Special Judge, Anti- Corruption Hyderabad, for necessary compliance.