' Mohammad Bashir Petitioner, while serving as process server in the Court of Civil Judge, Balaket, was charged as per FIR No,3 dated 5th April, 1989 Police Station Anti-Corruption Establishment, Mansehra for bffences under section 420/468/471/466, P.P.C., read with section 5(2) Prevention of Corruption Act, 1958.
2. He moved an application for his pre-arrest bail before the learned Sessions Judge, Mansehra which came up for hearing on 22nd November, 1989. Vide his order of even date the learned Sessions Judge admitted the petitioner to transitory ad interim bail before arrest on furnishing bail bond in the sum of Rs,30,000 with two sureties each in the like amount to the satisfaction of any Magistrate Ist Class, Mansehra. He, however, at the same time was directed to appear before the Special Judge Anti-Corruption, Peshawar within 7 days from date of the impugned order presumably for confirmation of the pre-arrest bail.
3. The petitioner has called into question the order of the learned Sessions Judge in so far as his direction to the petitioner for his appearance before the Special Anti-Corruption Judge, Peshawar by way of the instant petition.
4. I have heard Mr. Anwar Khurshid Turk, Advocate learned counsel for the petitioner and Fazal Gul Khan, Advocate learned counsel for the State at length and perused the record of the case with considerable degree of care.
5. It is contended on behalf of the petitioner that the impugned order of the learned Sessions Judge suffers from an inherent infirmity in that the learned Sessions Judge has failed to exercise the jurisdiction vested in him inasmuch as he is ex-officio notified as Senior Special Judge under subsection (1) of section 3 and subsection (1) of section '5 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), (hereinafter referred to as the Act), within his respective Sessions Division. He referred in this behalf to two notifications issued under sub-section (1) of section 3 and subsection
(2) of section 4 to the Act, both dated 25th of November, 1958. He thus urged that instead of directing the petitioner to appear before the Special Judge at Peshawar, the learned Sessions Judge could have heard and disposed of the pre-arrest bail of the petitioner.
6. Learned counsel appearing for the State did not seriously controvert the legal position of the matter as pressed into service on behalf of the petitioner.
7. The two notifications thus issued and referred to by the learned counsel for the petitioner may be re-produced as under:--
1. No,F.Admn.15/8/58(I), dated the 25th November, 1958. In exercise of the power conferred respectively by subsection (1) of section 3 and subsection(1) of section 5 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and in supersession of the Ministry of Law Notification No,FAdmn.39(2)/54-E, dated the 28th January, 1958 and No,F.Admn. 15/1/58, dated 4th March, 1958 the Central Government is pleased to appoint all Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges in East and West Pakistan, who have for a period of not less than three years exercised whether continuously or not, the powers under the Code of Criminal Procedure, 1989, of a Sessions Judge, and Additional Sessions Judge or an Assistant Sessions Judge, to be Ex- Officio Special Judges within their respective Sessions Divisions for the trial of offences under the said Act."
2. No,F.Admn.15/8/58 (II), dated the 25th November, 1958---In exercise of the power conferred by subsection (2) of Section 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) the Central Government is pleased to declare all the Sessions Judges in East Pakistan and West Pakistan to be, the Senior Special Judges for their respective Sessions Divisions."
8. A bare reading of both the Notifications would clearly indicate that the learned Sessions Judge, Mansehra is Ex Officio Senior Special Judge for his respective Sessions Division for the trial of the offences under the Act and that after admitting the petitioner to ad interim bail, his direction to the petitioner to appear before the Special Judge Anti-Corruption at Peshawar is rather consequenting into failure of his jurisdiction vested in him under the law and as such his impugned order, to the extent of the direction contained therein, cannot be sustained in law. I am, therefore, clear in my mind that the learned Sessions Judge would have better heard the petition himself and dispose it of on merits accordingly.
9. Viewed the matter in the perspective of the foregoing discourse, I hereby set aside the impugned order to the extent indicated above and remand the case back to the learned Sessions Judge, Mansehra for hearing and deciding the pre-arrest bail of the petitioner in accordance with law.
10. The petitioner is directed to appear before the learned Sessions Judge, Mansehra on 31st January, 1990.
11. After doing the need, however, a copy of his order shall be communicated to the Special Judge Anti-Corruption concerned for further proceedings, if any, in the case.