PLJ 2022 Cr.C. 297
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435/439--Pakistan Criminal Law Amendment Act, 1958, S. 5--Summoning of the accused--Order of fresh investigation of the case--The Court summoned the petitioners to face the trail but on the other hand directed the Circle Officer A.C.E. to conduct fresh investigations in the case--Police after investigation recommended the case for cancellation and placed the report before the Court when the Court proceeded to pass the impugned order--The Court sent the matter to the Circle Officer for investigations under Section 5 of the Pakistan Criminal Law Amendment Act, 1958--Court has no jurisdiction to pass an order for summoning of the accused at the stage when it remitted the case to the Circle Officer for investigations because there was no case before the Court to deal with it--Orders issuing non-bailable warrants in consequence of order are also illegal and not sustainable--The petition is allowed and the order is set-aside to the extent of summoning the accused of the FIR in the Court for facing trial in the case--Rest of the order for remitting case to the Circle Officer A.C.E. for investigations afresh is maintained with modification that under the law, the case can be sent to that Circle Officer in whose jurisdiction the offence was committed--Petition allowed. [Pp. 298 & 299] A, B, C, D, E & F
M/s. Kashif Nadeem Malik & Hafiz Mian Muhammad Riaz, Advocates for Petitioners.
Mr. Muhammad Ali Shahab, Deputy Prosecutor General for State.
Date of hearing: 20.6.2018.
PLJ 2022 Cr.C. 297
[Lahore High Court, Multan Bench]
Present: Syed Muhammad Kazim Raza Shamsi, J.
TANVIR ALAM and 3 others --Petitioners
versus
SPECIAL JUDGE ANTI-CORRUPTION, D.G. KHAN MUZAFFARGARH etc.--Respondents
Crl. Rev. No. 422 of 2013, decided on 20.6.2018.
Order
This criminal revision petition is directed against the orders dated 02.07.2013, 11.09.2013 and 04.12.2013 passed by the learned Special Judge Anti-Corruption, D.G. Khan Division, whereby on the one hand, the Court summoned the petitioners to face the trial in case FIR No. 18/2009 but on the other hand directed the Circle Officer A.C.E. Dera Ghazi Khan to conduct fresh investigations in the case.
2. The petitioners and 10 others were charged for commission of the offence as reported through FIR No. 18/2009 and the police after investigation recommended the case for cancellation and placed the report before the Court when the Court proceeded to pass the impugned order dated 2.7.2013 and the subsequent orders for issuance non-bailable warrants of the petitioners for procuring their attendance.
3. Alter hearing the learned counsel for the parties and perusing the record, it is found that the learned Court below blow hot and cold in the same breath while passing the order dated 02.07.2013.
In the first instance, the Court found that prima-facie there was sufficient material on the record to proceed against the culprits and did not agree with the cancellation report prepared by the police but in the same breath the Court sent the matter to the Circle Officer for investigations under Section 5 of the Pakistan Criminal Law Amendment Act, 1958. The jurisdiction exercise by the Court in passing the impugned orders docs not vest in it at all. The Court was required to either agree or disagree with the cancellation report with the direction to I.O. for submission of the challan but it does not lie in the mouth of the Court to summon at that stage the accused of the case when the challan was not before it. Similarly, the Court has no jurisdiction to pass an order for summoning of the accused at the stage when it remitted the case to the Circle Officer for investigations because there was no case before the Court to deal with it. In both situations, when the case is not before the Court then how a Court can summon the accused of the FIR. In this scenario, subsequent orders issuing non-bailable warrants in consequence of order dated 2.7.2013 are also illegal and not sustainable for the reasons stated above. So, the orders passed by the Court below suffer from patent illegality, thus, are liable to be set-aside.
4. For the foregoing reasons the petition in hand is allowed and the order dated 02.07.2013 is set-aside to the extent of summoning the accused of the FIR in the Court for facing trial in the case. Rest of the order for remitting case to the Circle Officer A.C.E. for investigations afresh is maintained with modification that under the law, the case can be sent to that Circle Officer in whose jurisdiction the offence was committed and in the present case, the offence was committed within the jurisdiction of Circle Officer, A.C.E. Muzaffargarh therefore the case-be sent to the Circle Officer Muzaffargarh for investigations afresh. In consequence of partial setting aside of order dated 02.07.2013, the subsequent orders dated 11.09.2013 and 04.12.2013 are also set-aside.
(K.Q.B.) Petition allowed
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