1. Applicant above named, being aggrieved by order dated 21st October, 1975 of the Special Judge, Anti-Corruption (Central) Karachi, passed on applicant's application under section 253, Cr. P. C.
2. Dated 24-7-1975, in Case No. 59/75, by which applicant's said application was dismissed, has preferred the above petition, on the following facts and grounds :- That the petitioner was employed as Manager, National Bank of Pakistan, Empress Market Branch, Karachi and on 28-8-1971, a case under F. I. R. 66 of 1971 against him was registered by the Special Police Establishment, Karachi, under section 409/420/477, P. P. C. Read with section 5 (u) of Act 11 of 1947.
3. That after making the investigation of the said case, the police concerned submitted a report to the Court of Special Judge (Central), Karachi, under section 169, Cr. P. C. On 15-7-1974, mentioning therein, that from the investigation it is revealed, that no loss has been caused to the Bank and that the petitioner had already been removed from service for his negligence. It was further added, that it had been decided by the superior officers not to try the petitioner, hence case may be closed. On this report the learned Special Judge was pleased to order for closing the case, by his order dated 2-8-1974.
4. That subsequently on 4-11-1974, the police concerned submitted an application, under section 173, Cr. P. C., in the Court of learned Special Judge (Central), Karachi, for re-opening the case, on which permission was accorded vide order dated 16-11-1974.
5. That later on the police submitted charge-sheet on 14-4-1975, and the said charge-sheet is dated 25-3-1975.
6. That the case of prosecution is, that the petitioner alongwith one Islamuddin allowed unauthorised overdrafts to the extent of Rs. 1,28,802 and by opening fictitious accounts made debits and credits in the respective accounts. Islamuddin co-accused is not a public servant since very beginning.
7. That in February, 1972, the petitioner was dismissed by the National Bank of Pakistan and he ceased to be a public servant since then.
8. That on 7-11-1975, the substance of accusation was read over to the petitioner and the other co- accused in the trial Court of learned Special Judge (Central) Karachi, under the allegation of section 403/409/467/468/ 477-A, P. P. C. Read with section 5 (ii) of Act II of 1947, in which the petitioner and the other co-accused pleaded not guilty.
9. That before the substance of accusation, the petitioner filed an application dated 24-7-1975, under section 253, Cr. P. C., which was rejected vide order 21-10.1975 by the learned Special Judge (Central), Karachi.
10. That in the application dated 24-7-1975, filed on behalf of the petitioner, it was urged, that since the petitioner, has ceased to be a public servant since February, 1972, and as such the Court of learned Special Judge (Central), Karachi bad no jurisdiction to try him.
11. The learned trial Court, after hearing the learned Advocate for the applicant as well as State Counsel dismissed applicant's application under section 253, Cr. P. C. Vide its impugned order dated 20.10.1975 and consequently applicant has filed the above petition. On the grounds mentioned in the memo. Of above petition. In addition to the grounds mentioned in memo. Of above petition, the learned counsel also raised the legal grounds, that applicant was not "Public servant" within the meaning of section 2(b) of the Pak. Cr. Law Amendment Act, 1958, as it stood then. Since this was a legal point, I permitted the learned counsel to argue the same, though it has not been specifically raised in the above petition.
12. The learned counsel for the applicant in support of the above petition submitted as under:-
(a) The applicant was not public servant within meaning of section 2(b) of Pak. Cr. Law Amendment Act, 1958 and as such learned Special Judge wrongly assumed the jurisdiction and consequently on this ground alone, the applicant was entitled to discharge and the proceedings in question are liable to be quashed by this Court.
(b) In the alternative, the learned trial Court had no jurisdiction to try the applicant, as he ceased to be public servant since February 1972 when he was dismissed from service.
(c) That learned trial Court has erred in holding, that the relevant date to be considered for the purpose of trial before it, was the date of commission of the offence and not submission of charge- sheet.
(d) That the Court of the learned Special Judge (Central) Karachi can try a public servant on sanction accorded for his prosecution and since no sanction could be accorded for the prosecution of applicant who had already ceased to be a public servant, the Court was not equipped with the jurisdiction to try him.
(e) That after closing the case of the petitioner under section 169, Cr. P. C. And further reopening of the case under section 173, Cr. P. C. Was done without giving any prior notice to the petitioner and also prima facie no additional evidence was available, particularly in view of the fact, that the case under section 169, Cr. P. C. Was closed on the ground, that no loss has been caused to the Bank and for negligence of the petitioner he had been dismissed froth service. The basic facts are not changed, that no loss was caused to the Bank concerned and that there were only unauthorised loans/ overdrafts by petitioner as alleged, which were already refunded to the bank by the respective parties.
13. The learned Advocate appearing for the National Bank of Pakistan on the other hand submitted the applicant as a "public servant", within the meaning of section 2(b) of the Pak. Cr. Law Amendment Act, 1958, as it stood then, and his dismissal from service, before commencement of trial did not take away the jurisdiction of the Special Judge to try him. The learned counsel further submitted, that in view of the law laid down by Honourable Supreme Court in PLD 1981 SC 642, no sanction was necessary for prosecution of the applicant, in respect of the offence committed by him, while he was in service. The learned counsel further submitted, that prosecution had full right to re-open the case closed tinnier section 169, Cr. P. C. And as such there is nothing illegal about the trial of the applicant, on this account as well. The learned State Counsel adopted the arguments of the learned Advocate for the National Bank of Pakistan.
14. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the impugned order and documents filed with the above petition by the applicant.
15. In my opinion, contention of the learned counsel, that applicant was not "public servant", within the meaning of section 2(b) of Pak. Cr. Law Amendment Act, 1958, has no force for the same reasons, which I have given A in my order dated 3-4-1983 in Criminal Review Application No. 220/75 in connection with this legal objection and as such I need not repeat the same here.
16. I also find no force in the contention of the learned Advocate for the applicant that learned trial Court has no jurisdiction to try applicant, as he ceased to be public servant w.e.f. February, 1972, when he was dismissed from service, in view of law laid down by Hon'ble Supreme Court in cases reported in 1974 SCMR 445 and 1974 P Cr. L J 82. In view of this I see no illegality and/or material irregularity in impugned order, in respect of this finding of the learned trial Court, that its jurisdiction is not lost, as applicant ceased to be public servant, at the time of cognizance of offence and/or trial. In my opinion, relevant date for assumption of jurisdiction by Special Judge is the date of the offence, as rightly held by the learned trial Court.
17. I also find no force in the contention of the learned Advocate for the applicant, that the case of applicant was illegally reopened, alter closure under section 169, Cr. P. C. Very wording of section 169, Cr. P. C. Envisages, that prosecution may, if subsequent investigation reveals involve--ment of accused, he could be sent up for trial. I find, prosecution by it letter dated 14-11-1974 in para. 2 of the said letter have given cogent reasons for reopening of the case against the applicant. I further find, that learned C trial Court, while passing orders on prosecution application under section 169, Cr. P.
18. C. Ordered closure of case only, and did not pass even orders for discharge of the applicant.
19. Learned Advocate for the applicant was unable to cite any case law in support of this contention. I see no illegality and or material irregularity in orders dated 16-11-1974, by which the learned trial Court ordered reopening of the case against the applicant.
20. Therefore I find no merits in the above petition, which is consequently dismissed.