IMAM ALI G. KAZI, J.-Applicant is an employee of the Canteen Store Department of Government of Pakistan.
2. On 18.6.1990 at about 2.00 p.m. It. Col. Mohammad Yousuf, Zonal Manager, Canteen Store Department, lodged a complaint at Shahrah-e-Faisal Police Station, Karachi. His complaint was registered as crime No. 206/90 of that Police Station and was recorded under Section 14 of the Offences against the Property (Enforcement of Hadd) Ordinance, 1979. The applicant was arrested in the investigation of the case but ultimately he was released by the Police and report under Section 169 Criminal Procedure Code was filed by them.
3. On 26.8.1991 again the same officer of the Canteen Store Department went to Police Station Sharah-e-Faisal and complained of mis-appropriation of Government funds relating to the loss to the Department reported in the earlier report. His report was registered as crime No. 178 of 1991 under Sections 408 and 420 Pakistan Penal Code. The Applicant was nominated in the FIR. He, therefore, approached the Sessions Judge (East), Karachi for grant of pre-arrest bail in that case.
The Sessions Judge (East), Karachi, granted him bail before arrest on 17.5.1992.
4. All remained well till 3.8.1992 when a third FIR was registered at Police Station FIA, Crime Circle II, Karachi, under Sections 409, 420, 468, 471 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947. This FIR was registered by Sifat Ali Asghar, Inspector of FIA as the second FIR registered n the case was transferred to the FIA for investigation. Officers of the FIA started chasing the Applicant with the result that he approached Special Judge, Anti- Corruption (Central II), Karachi for his pre-arrest bail, which was declined and the Applicant was taken in custody. The Applicant repeated his bail application after arrest without any success. It is only thereafter that he has filed the present bail application.
5. Mr. Umer Faruq, Advocate for the Applicant, has referred to the Notification No. F. Adm. 15-8/58(1) dated 25th November, 1959 whereby all Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges are notified to be ex-officio Special Judges within their respective Sessions Divisions for the trial of offences under the Pakistan Criminal Law Amendment Act, 1959. He has also referred to another Notification of the same date which notifies that every Sessions Judge in West Pakistan is to be considered as Senior Special Judge for their respective Sessions Divisions.
6. Mr. Abdul Hakeem H. Bijarani, Assistant Advocate-General Sindh, confirms the position and has produced photostat copies of the two. Notifications and states that these Notifications are still in force.
7. In view of these Notifications although there was no necessity for the Applicant to have approached the Special Judge Anti-Corruption for his prearrest bail but Mr. Umer Faruq, his Advocate, states that officers of the FIA Department refused to recognise the order of the Sessions Judge Karachi (East) granting pre-arrest bail to the Applicant which necessitated filing of application before the Special Judge for pre-arrest bail. He contends that once bail was granted by the Sessions Judge Karachi (East) exercising his power as the Senior Special Judge for that Division, it was not open for the Special Judge Anti-Corruption (Central II), Karachi to have refused his bail application. In fact proper course for him would have been to reject the bail application on the ground that no such application was required to be filed by the Applicant in view of bail having already been granted to him by the Sessions Judge Karachi (East).
8. This bail application was fixed before me on 21.10.1992 when prima fade I had considered that the Applicant was entitled to grant of bail in the circumstances of the facts stated herein above and I had allowed him bail pending further orders in the matter. Today the matter has been listed for confirmation of the bail.
9. The two Notifications referred to by both the counsels are reproduced herein below:- "No. F. Adm. 15-8/58(1).-In exercise of the powers conferred respectively by sub-section (1) of section 3 and sub-section (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1959 (XL of 1958) and in supersession of the Ministry of Law Notification No. F. 39(2)/54-E, Dated the 28th January 1959 and No. F. Adm. 15-1/58 dated the 4th March, 1958, the Central Government is pleased to appoint all Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges in East Pakistan 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, 1898, of a Sessions Judge, an 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."
"No. F. Adm. 15-8/58(11).-In exercise of the powers conferred by subsection (2) of section 4 of the Pakistan Criminal Law Amendment Act, 1959 (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."
10. In view of above it is clear that the Sessions Judge Karachi (East) while granting bail to the Applicant was exercising the concurrent power conferred on him by virtue of the two Notifications mentioned above. Once such power is exercised by him the other Judge i.e. Special Judge Anti- Corruption having concurrent jurisdiction could not exercise the same powers at that stage of the investigation. Mr. Abdul Hakeem H. Bijarani, Assistant Advocate-General, Sindh, has further confirmed that power to cancel bail under Section 497(5) Criminal Procedure Code was also not available to the Special Judge as that provision is attracted only when a bail is granted in terms of Section 497 Criminal Procedure Code while in the instant case the bail was granted under Section 498 Criminal Procedure Code.
11. For the foregoing reasons bail granted to the Applicant on 21.10.1992 pending his trial is hereby confirmed and the bail application is disposed off.