' This Revision Application has been filed by Mr. M. M. K. A. Zai himself a practicing lawyer who on 16- 10-1973 had filed a direct complaint under sections 380, 409, 465 and 566, P. P. C. Against the respondents Nos. 2, 3 and 4, in the Court of Special Judge (Central), Karachi (Mr. Qadeer.
Muhammad Kureshi) which he dismissed. The applicant was an accused person before respondent Sayed Captain Iftikhar Hussain (then Special Judge) in Case No, 73/65, and his main allegations were that the original challan from the file of that Court and had planted some other challan in its place. This had been done as Captain Iftikhar Hussain had framed a substance of accusation, which was different from the original facts of that case and the challan had necessarily to be substituted to bring it in conformity with the same.
2. The Special Judge on receiving the above-stated complaint, ordered that statement of the applicant/complainant be recorded under section 200 of the Cr. P. C., but the latter, on 20-10-73 filed his objections against this order stating that under proviso I of section 6 (5) of Criminal Law (Amendment) Act, 1958, and also as held in the case of Ainuddin v. State (1) there was no provision in the said Act for recording of statement of a complainant. The only course open to the Special Judge was to address a letter to the appropriate Government for sanction for prosecution of the Public Servant shown as accused. The Special Judge, however, disregarded his objections and recorded his statement on oath, where after on 22-10-1973 he dismissed the complaint filed by the applicant by an order purporting to have been passed under section 203, Cr. P. C.
3. As it appears the applicant had, prior to this, filed a complaint upon same facts before the City and Additional District Magistrate, Karachi but the same had been dismissed on the ground that the respondents being public servants, that Magistrate had no jurisdiction to proceed with the matter. The applicant had then challenged that order by filing Cr. Revision No, 464/73 in the High Court, but that was also dismissed on 14-9-1973. The learned Single Judge who decided that application, while dismissing the application observed : "I would however make it clear that the petitioner has indeed a right to proceed and prosecute his remedy in the Court of Special Judge if he feels so advised."
' It is thereafter that the applicant repeated his complaint before the Special Judge who passed the impugned order under section 203, Cr. P. C.
4. The grounds raised by the applicant in his Memo of Revision in this case are, (1) that the impugned order is against law and facts, (ii) that only the statement under section 200, Cr. P. C.
And the contents of the complaint could be taken into consideration for the purpose of jurisdiction, and (iii) that he had not been given a chance to produce the evidence in support of his complaint.
Besides this it is also urged that the Special Judge had no jurisdiction unless the question of sanction was first decided and on that question the applicant's version had not been correctly appreciated. In Para. No, 9 he stated as follows :- "The crimes were not committed as Government servants, nor it was their duty to commit them.
These can be done by a stranger to the record also and their position has nothing to do with the crime."
5. The respondent No, 2 only, has filed his objections to the present application, giving details of the case, in which the substitution of the challan is alleged to have been made, and has disclosed that the applicant was convicted by him as Special Judge, by judgment which was upheld by the High Court in appeal. The applicant had then challenged the decision of the High Court in the Supreme Court, where the same was still pending. But neither in the High Court nor in the Supreme Court did the applicant state as a fact that the original challan had been stolen or substituted as he had alleged in the complaint.
6. Before me the application was argued by Mr. M. M. K. A. Zai personally on his own behalf, and surprisingly the only contention raised by him, appeared to be totally different from what he has stated in his grounds in the application. Mr. Zai contended that in the 1st instance the Special Judge bad no jurisdiction at all to record his statement on oath as he did under section 200 of the Criminal Procedure Code, for the procedure to be adopted by the Special Judge on receiving a complaint is prescribed and set {{FOOT NOTE}}
(1) PLD 1962 Kar. 738 {{FOOT NOTE}} ' down in section 4, sub-clause (1) of the Pakistan Criminal Law (Amendment) Act, 1958, which reads as under :- "A special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cognizance of any offence committed or deemed to have been committed within such limits and tribal under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer."
' According to him there was nothing in this Act to empower the Presiding Judge, to examine the complainant on oath as is provided under section 200 of the Criminal Procedure Code, which imposes a duty on the Magistrate taking cognizance of an offence on complaint to at once examine the complainant on oath, and to reduce such examination to writing.
' The other part of this argument was also based on the same reasoning, whereby he questioned the authority of the Special Judge to dismiss his complaint, under section 203 of the Criminal Procedure Code, which in his submission was not applicable and reads as under :- "203. The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if (after considering the statement on oath (if any) of the complainant and the result of (investigation) or inquiry (if any) under section 202) there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing."
' The contention of Mr. M. M. K. Zai was that the powers of the Special Judge, in this respect are limited to section 6 of the Pakistan Criminal Law Amendment Act, 1958 only, and he cannot act in any different manner than what is provided therein. The relevant part of section 6 reads as under :- "6. Procedure in trial of cases and powers of Special Judges.-(1) The provisions of the Code of Criminal Procedure, 1898 except those in Chapter XXXVIII of that Code, shall, in so far as they are not inconsistent with this Act, apply to the proceedings of the Court of a Special Judge and for the purpose of the said provision, the Court of Session trying cases without the aid of Assessors or Jury, and a person conducting prosecution before the Court of a Special Judge, shall be deemed to be a Public Prosecutor.
' The provisions of Chapter XX of the Code of Criminal Procedure, 1898, shall apply to trial of cases under this Act in so far as they are not inconsistent with the provisions of this Act. Specific stress was laid by the applicant on the provisions made in sub-clause (5) of this section which applied not only to a police report but to a direct complaint also and is in the following terms :-
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence tribal under this Act : ' Provided that in case where the complaint or report referred to in subsection 4 is not accompanied by such sanction the Special Judge shall immediately on receipt of the complaint or report, address, by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded."
7. In developing his argument, first, on clause 5 of section 6 of the Criminal Law (Amendment) Act, 1958, the applicant, submitted that this point was considered in the case of Ainuddin v. State where it was observed at page 740.:- "It is doubtful whether the learned Special Judge is entitled to take cognizance of any offence against a public servant under the above-mentioned provisions of law on the complaint of a private party. But assuming that he is competent to take cognizance of any offence committed or deemed to have been committed within his jurisdiction upon a private complaint, the jurisdiction to hold a preliminary inquiry for finding out a prima facie case is not specifically conferred on him under the Criminal Law (Amendment) Act of 1958. Under section 4 (1) of this Act he is empowered to take cognizance of any offence committed or deemed to have been committed within his jurisdiction upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer, but under section 6 (5) it is specifically provided that notwithstanding anything contained in the Code of Criminal Procedure, or in any other law, previous sanction of the appropriate Government is a condition precedent for the prosecution of a public servant for an offence under this Act. Then in the proviso to this section it is provided that :- ' In cases where the complaint Report referred to in subsection (1) of section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address, by letter to appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government such sanction shall be deemed to have been duly accorded."
' Thus it is quite clear from the above-mentioned proviso that immediately the Special Judge receives a complaint or report for prosecuting a public servant, it is not open to him to proceed in the matter unless and until previous sanction is obtained from the appropriate Government for the prosecution of such public servant. Impliedly under the above-mentioned provision of law the learned Special Judge is not empowered to hold any inquiry whatsoever for finding out a prima facie case against such public servant nor is he competent to decide the question against whom he should seek sanction and against whom he should not seek sanction.
' The Scheme of the Criminal Law Amendment Act limits the jurisdiction of the Special Judge in this respect. The only step he can take on receiving the complaint or the police report is to immediately write to the appropriate Government for obtaining sanction to prosecute the public servant concerned. The question whether the public servant concerned should be prosecuted or not is entirely and completely within the jurisdiction of the appropriate Government. In my opinion the learned Special Judge has no say in the matter. It is not for him to decide whether a prima fade case has been made out against the public servant or not.
' Now the facts of the instant case, are in the first place different from that case, inasmuch as the respondents were admittedly not public servants at the time the applicant filed his complaint and in that event the question of referring the matter to the Government or a competent authority for sanction did not at all arise. The applicant himself admitted this position in law, as it has been so held in the case of Ataur Rehman v. State (1) and Mohammad Abbas v. State (2). That being so the Special Judge was not required to refer' the matter to the Government or any authority for sanction for prosecution, as was contended, and the authority quoted by the applicant had no relevance.
8. The only other question which therefore requires consideration is whether the Special Judge was competent to record statement of the applicant/ complainant under section 200, Cr. P. C. Or to dismiss his complaint under section 203 of the same Code. The sections of the Criminal Law Amendment Act quoted above, obviously, show that the provisions of the Code of Criminal Procedure should apply to the proceedings before a Special Judge, but only to the extent to which they are not inconsistent with the Act itself. The applicant, in order to succeed in his plea had therefore necessarily to show that what was provided in section 200 or 203 of the Code was not consistent with the provisions available in the Act. In this respect reference may also usefully be made to section 5 (2) of the Code of Criminal Procedure itself which reads as under:- "5 (2).-All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner, place of investigating, inquiring into, trying or otherwise dealing with such offences."
' This is an enabling provision and makes the provisions of the Criminal Procedure Code, applicable to the proceedings before a Special Judge also, but they shall not so apply if they are found to be inconsistent with the procedure provided under the Criminal Law Amendment Act itself. The applicant was, therefore, specifically asked to point out as to how the procedure followed by the Special Judge was inconsistent. It is true that such provisions are absent in the said Act, but would mere absence, amount to saying that they are on that account inconsistent, so as to exclude the application of section 5 (2) of the Code.
' The only reply of the applicant to the question was his reliance on the case Ainuddin v. State, referred to above, in which it was said that the only course to be adopted by a Special Judge was to address a letter to the Government and no more.
' I regret I have not been able to persuade myself to agree to this view. In order to be inconsistent the provision must be found to be intrinsically incompatible with something which the Act has provided affirmatively.
' In the Karachi case it was stated that the jurisdiction to hold a preliminary inquiry for finding out a prima facie case was not specifically conferred on a Special Judge but it was neither considered nor shown as to how a provision for such an inquiry in the Criminal Procedure Code could therefore {{FOOT NOTE}}
(1) PLD 1967 SC 23 (2) 1974 SCM R 445 {{FOOT NOTE}} ' be termed as inconsistent, within the meaning of the provisions of the Act. There is nothing even in the discussion to suggest that this question was specifically raised. Mr. Zia the applicant was not in a position to refer to any other authority to support his contention. A Magistrate acting under the Criminal Procedure Code can for the purpose of ascertaining the truth or falsity of the contents of a complaint hold inquiry into the case himself or direct the same to be held by any other Magistrate or a police officer. He can dismiss a complaint if in his judgment no sufficient ground for proceeding is made out and for that purpose he can consider the statement of the complainant recorded on oath and also the result of the inquiry or investigation referred to above. Under the Pakistan Criminal Law Amendment Act, 1958, a provision equivalent to this is not to be found. It would, therefore, seem that the provisions of the Code of Criminal Procedure would automatically be available on the basis of section 5 (2) of the said Code. By doing this no procedural inconsistency would take place with what is provided under the Pakistan Criminal Law (Amendment) Act, 1958.
9. In view of the above, I find that the Special Judge committed no illegality or impropriety which may merit an interference in exercise of the provisional jurisdiction by this Court and I, therefore, dismiss the application.