ABDUL HAMEED DOGAR, J.---This Criminal Appeal by our leave has been preferred by the appellant Haji Junnat Gul son of Haji Anar Gul from the judgment dated 16-9-1996 passed by learned Single Judge of the High Court of Sindh, Karachi whereby his Criminal Revision Application No,66 of 1996 was dismissed.
2. Briefly, stated, the facts are that the appellant used to be the President of Anjuman Bahbood Islah Aka Khel Pakhtoon (Malir), Karachi and enjoyed a best reputation in his community, so much so that "JUNNA T GUL TOWN" was being called in his name. On 12-7-1995 at about 21-00 hours one Akram Khan son of Shahzad Gul was attacked by unknown culprits in Lughmani Colony Sohrab Goth and on coming to know about such incident, he, Muhammad Yousaf Khan, the brother of deceased Akram Khan, Wazir Gul his uncle and Islamuddin went to Police Station Gulzar-iHijri, where S.H.O. Was not present, therefore, they went to the office of Mazhar Farooq, the ASP respondent No,2 where respondents. Nos.3 and 4 were present. As soon as they entered inside the office and asked respondent No,2 for taking legal action about the murder of deceased Akram Khan, he got infuriated and asked respondents Nos.3 and 4 not to spare him, upon which they caught hold of his beard and severely maltreated him on the pretext of making applications to the Chief Secretary. Thereafter they put him and P.W. Islamauddin behind bars at Police Station Gulzar- i-Hijri, District Malir where they remained in illegal confinement for an hour and were released subsequently, on acceptance of illegal gratification of Rs,21,600 and a Wrist Watch make "Rolex" valuing Rs,80,000. Thereafter, appellant attempted for registration of case but failed due to influence of respondent No,2. He also addressed so many applications to the higher authorities but all in vain. Consequently, finding no other alternative, he filed a complaint under sections 161/163/165/342/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 before the Special Judge, Anti-Corruption (Provincial), Karachi who after receipt of the complaint, examined the appellant under section 200, Cr.P.C. And ordered preliminary enquiry under section 202, Cr.P.C.
To be conducted by the Deputy Director, Anti-Corruption Establishment, Karachi. The Deputy Director sent the same to the Inspector, Circle Officer, ACE who conducted such enquiry and submitted his report in the trial Court. It was on 29-11-1995 the learned Special Judge, brought the case on regular file and issued process against respondents Nos.2 to 4 under section 204, Cr.P.C.
After being satisfied that a prima facie case for the offences punishable under sections 161 and 220, P.P.C. Read with sections 34, P.P.C. And 5(2) of the Act II of 1947 was made out against them.
3. Respondent No,2 Mazhar Farooq assailed the above order under section 249-A, Code of Criminal Procedure (hereinafter to be referred as the "Code") and urged for the acquittal on the ground that since preliminary enquiry was conducted by Inspector, Anti-Corruption, an incompetent person, as such the cognizance taken by the trial Court on his report was without jurisdiction. The application was neither allowed nor dismissed but on the contrary the earlier order dated 29-11-1995 about issue of process was recalled. It was against this order, abovementioned Criminal Revision Application No,66 of 1996 was preferred before learned High Court, which was dismissed in limine.
4. On 27-10-1996 leave to appeal was granted to consider the following points: "(i) Whether the inquiry held by the Inspector, ACE under section 202 of Cr.P.C. Was bad in law if such inquiry was ordered to be held by the Deputy Director, ACE? And
(ii) Whether the Special Judge Anti-Corruption was competent to recall his order about issue of process purported to have been passed under section 204 of Cr.P.C.?
5. We have heard M/s. Gul Zaman Khan, learned A.S.C. On behalf of the appellant as well as Raja Abdul Ghafoor, A.O.R. For respondents who was present alongwith respondents Nos.3 and 4.
6. Mr. Gul Zaman, mainly contended that holding of preliminary enquiry by the Inspector, Anti- Corruption Establishment and not by the Deputy Director, Anti-Corruption Establishment was, neither illegal nor fatal to the case of the appellant as learned Special Judge after taking into consideration the evidence and the provision of section 204, Cr.P.C. Issued the process in accordance with law. For the sake of arguments even if it is considered as an illegality the same is curable under section 537, Cr.P.C. In support he referred to the case of Aziz Maseeh v. The State PLD 1976 Lahore 53. He next contended that the learned Judge was not competent to revise/recall his own order dated 29-11-1995 as it was not warranted by law when the same was passed by a detailed order after being satisfied that a prima facie case against the respondents was made out.
On this aspect of the matter he relied upon the case of Azizur Rahman and others v. The State PLD 1960 Dacca 1054.
7. On the other side Raja Abdul Ghafoor, Advocate-on-Record agreed with the contentions of appellant's counsel and stated that once cognizance of the matter was taken and the process was issued under section 204, Cr.P.C. The same could not be recalled or reviewed by the same Judge, as there is no such provision in the criminal law.
8. By virtue of subsection (2) of section 5 of the Code the provisions of Code are applicable to the trials before the Special Judge. Section 6 of Pakistan Criminal Law (Amendment) Act, 1958 (hereinafter to be referred as the "Act") prescribes the procedure for trial of cases and powers of Special Judges. According to this provision of law the provisions of the Code except those in Chapter XXXV1II of that Code, in so far as they are not inconsistent with the Act, apply to the proceedings of the Court of a Special Judge and for the purpose of said provisions, the Court of Special Judge shall be deemed to be a Court of Sessions Judge. Irrespective of the above, the provisions of Chapter XX of the Code shall apply to the trial of cases under the Act in so far as they are not inconsistent with its provisions.
9. In the cases upon a private complaint, jurisdiction to hold a preliminary enquiry for finding out a prima facie case is not specifically provided in the Act. Under section 4(1) of the Act Special Judge is empowered to take cognizance of any offence committed or deemed to have been committed upon receiving a complaint of fact which constituted such offence or upon a report in writing of such facts made by any Police Officer. Since in the instant case the cognizance was taken on a private complaint as such the provisions of Chapters XVI and XVII of the Code would be applicable.
Accordingly the learned Special Judge rightly exercising his jurisdiction recorded the statement of complainant/appellant under section 200, Cr.P.C. And thereafter, properly ordered for preliminary enquiry to be conducted under section 202. Cr.P.C. By the Deputy Director, Anti-Corruption Establishment, which was subsequently done by the Inspector. Anti-Corruption Establishment. As contemplated under section 5-A of the Prevention of Corruption Act, 1947 and section 202 of the Code the Inspector was competent to hold preliminary enquiry into the matter. For proper appraisal of the matter the reference is made to the same as under:--- "5-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of Inspector shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 or any offence punishable under section 5 without any order of a Magistrate of the First Class or make an arrest, therefore, without a warrant.
202. Postponement for issue of process.--(1) Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may , if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any Justice of the Peace, or by a Police Officer, or by such other person as it thinks fit for the purpose of ascertaining. The truth or falsehood of the compliant: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200."
10. In the former provision of law the words "Deputy Superintendent of Police" have been substituted by word "Inspector" by Prevention of Corruption (West Pakistan Amendment) Ordinance (II of 1970) and section 5-A was inserted in the Prevention of Corruption Act, 1947. Whereas in the later section 202 of the Code authorises an enquiry or investigation to be made by a Police Officer or by any other competent person, fit for the purpose of ascertaining the truth or falsehood of the complaint.
11. Accordingly we are of the view that Inspector, Anti-Corruption Establishment rightly conducted the preliminary enquiry in the matter and was competent to submit the report. We do not find any illegality as he was fully authorised to do so by the law, instead of forwarding the report to the Deputy Director, Anti-Corruption Establishment, submitting the same in the Court would not be an illegality at all but can be at the most a technical error, and even not covered under section 537 of the Code as it has not prejudiced the case of either side or has occasioned a failure of justice.
12. The grounds which weighed with the learned Special Judge to recall his earlier order are not convincing at all. It is nowhere mentioned in the above-referred provision of law that a Police Officer junior in rank than that of the accused cannot conduct preliminary enquiry/investigation in the matter.
13. It is manifest, on the bare perusal of section 204 of the Code that the Court issued process only on being satisfied that a prima facie case is made out as such the congnizance once taken cannot be recalled or reversed. The only course left in such cases would be to assail the same before an Appellate/Revising Authority. The same having not been done in the instant case the order dated 29-11-1995 has attained finality. Moreover, there is not any scope of review in the Criminal. Law, thus, the order of recall is unwarranted by law.
For the reasons recorded above, the impugned order dated 16-9-1996 of the High Court and that of the Special Judge Anti-Corruption dated 6-8-1996 are set aside and the order dated 29-11-1995 is restored. Consequently, the appeal is allowed and the trial Court is directed to proceed with the matter in accordance with law.