1. ' This acquittal appeal arises out of the orders passed by the learned Special Judge Anti- Corruption, Sukkur in Special Case No,71 of 1980 whereby he has acquitted the present respondents Nos.1 to 6 under section 265-J, Cr.P.C. It appears that letter T has been erroneously typed. In fact it is section 265-K, Cr.P.C. Under which the learned trial Judge seems to have exercised jurisdiction.
2. ' Briefly the prosecution case is that the present respondents who are all employees of the Police Department, were posted at police post Mandodero when on 28-6-1979 they had detained the four persons, namely, Ghazi, Gulu, Ghulam Shabir and Ghulam Mustafa without any report against them and their custody as such was unlawful. The matter was reported to the Anti-Corruption Establishment and on 28-6-1979 a raid was made at the police post where the said four persons were found to be in illegal detention and it transpired that the present respondents had demanded illegal gratification of Rs, 6,000 for the release of the said persons. The F.I.R. Was thus lodged as Crime No,13/79 under sections 161, 218, 344, P.P.C. Read with section 5(2) of Act II of 1947. After usual investigation the case was completed and the challan was put up before the Special Military Court, Sukkur. The Special Military Court passed an order on 26-3-1980 as under:- "To: Senior Superintendent of Police Sukkur Info: HQ SMLA Sub Sec 2 Sukkur Sub: Case FIR No, 18/79 A C E Sukkur against A.S.I Zaida Khan and others.
3. ' The case is very lengthy and complicated, It has been decided that departmental action be taken against the individuals.
4. (Sd. )
5. Lt.-Col. A.S.M.LA. (Muhammad Ayub)
6. ' After the said order the papers were returned to the S.P. Anti-Corruption Establishment and the Department then put up a challan before the Court of Special Judge-cum-Enquiry Officer Anti- Corruption, Sukkur. An application under section 265-K, Cr.P.C. Was moved before the trial Court and the learned trial Judge after hearing the arguments of the parties and their counsel was pleased to pass the impugned order and therefore, the present acquittal appeal.
7. ' I have heard Mr. Syed Zawar Hussain Jafferi, the learned Assistant A.-G. On behalf of the State. The learned AA.-G. Has submitted that the above-said order passed by the Summary Military Court on 26-3-1980 is not an order of acquittal or conviction and also is not an order on merits of the case and, therefore, section 403, Cr.P.C. Does not apply to the present case and the learned lower Court has erroneously held the said section to be applicable to the present case. Section 403, Cr.P.C.
8. Reads as under:-- "403. Person once convicted or acquitted not to be tried for same offence.--(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one, made against him might have been made under section 236, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, subsection (1).
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any act may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other effence constituted by the same act which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
9. (5)Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
10. Explanation--The dismissal of a complaint, the stopping of proceedings under section 249, or the discharge of the accused is not acquittal for the purposes of this section."
11. A plain reading of section 403, Cr.P.C. Itself would show that the above-said order cannot be termed as an order passed in exercise of jurisdiction under Criminal law as invested upon the Summary Military Court but at the most it can be treated as an advice or direction or refusal to take cognizance in the case. The same therefore, cannot be treated as a bar to the Department from taking further action as available to them. Now since the Summary Miliary Court by the said order had not accepted to take cognizance in the case, the department appeared to be at liberty to take action of either holding the departmental enquiry or submitting a challan before the Special Court under Act II of 1947 or even could take both the actions simultaneously and the department, thus exercising the option has submitted a challan before the Special Judge and in view of this position section 403, Cr.P.C. Would not be applicable to the case.
12. ' The second point urged by the learned Assistant Advocate-General is that the learned Special Judge has wrongly exercised jurisdiction under section 265-K, Cr.P.C. As the cases before the Special Court Anti-Corruption are to proceed under the provisions of Chapter XX of the Criminal Proccedure Code and at the most section 249 or 249-A, Cr.P.C. Could be available to the learned Judge and not section 265-K, Cr.P.C. The learned AA.-G. Has placed reliance on the case of Yaqub Ali v. State 1981 PCLLJ 542 wherein B.G.N. Kazi, J. (as he c then was) has held that the provisions of section 265-K, Cr.P.C. Do not apply to the proceedings before the Special Judge under Pakistan Criminal Law Amendment Act, 1958.
13. In view of the above reasons I accept this acquittal appeal, set aside the impugned order passed by the learned Special Judge Anti-Corruption, Sukkur Special Case No,71 of 1980 and remand the case for trial in accordance with law.
14. ' The respondents/accused were served and they are absent. The trial Court may issue appropriate process for their attendance.