ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Revision Application No. 93 of 2015
Applicant: Muneer Ahmed Bhullar s/o Anwer Masih,
through Ms. Naheed Qamar, advocate.
Respondent The Special Judge, Anti-Corruption
Nos. 1 to 3 & 5: (Provincial), Karachi and two others
through Ms. Rahat Ahsan, DPG.
Respondent No. 4: Mr. Akhter Ali, through Mr. S. Afaq Ali, advocate.
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Date of hearing: 01.03.2017
Date of order: 01.03.2017
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O R D E R
Zafar Ahmed Rajput, J:- This Criminal Revision Application is directed against the orders dated 03.07.2014, 01.12.2014 and 17.08.2015, passed by the learned Judge, Anti-Corruption (Provincial), Karachi in Special Case No. 42/2014, arising out of Direct Complaint, under section 200, Cr. P.C., filed by the respondent No. 4 against the applicant and others.
2. Brief facts of the case are that the respondent No. 4 filed the afore-mentioned direct complaint on 28.06.2014, which was sent by the learned Special Judge, Anti-Corruption (Provincial), Karachi to Director, A.C.E. to initiate an inquiry through some responsible officer, vide order dated 03.07.2014. Thereafter, upon inquiry report of Rana Liaquat Ali Khan, Sub-Inspector, Directorate of Anti-Corruption Establishment Sindh, Karachi, dated 05.09.2014, the learned Special Judge admitted the Direct Complaint under sections 161, 420, 468, 471, 34 P.P.C. read with section 5(2) Prevention of Corruption Act, 1947 against the applicant and others, vide order dated 01.12.2014. Subsequently, the applicant filed an application for re-investigation and compliance of provisions of sections 200 and 202, Cr. P.C., which was dismissed by the learned Special Judge, vide order dated 17.08.2015. It is against the aforesaid three orders, the instant Criminal Revision Application has been filed.
3. Heard the learned counsel for the parties and perused the material available on record.
4. Under section 4(1) of the Pakistan Criminal Law (Amendment) Act, 1958, Special Judge is empowered to take cognizance of any offence committed or deemed to have been committed upon receiving a complaint of facts which constitute such offence or upon a report in writing or such facts made by any police officer. Since in the instant case, the cognizance was taken by the learned Special Judge on a direct complaint, as such, the provisions of Chapter XVI of the Cr. P.C., which contains sections 200 to 205 of Cr. P.C, would be applicable.
5. It is an admitted position that the respondent No. 4 /complainant is not a public servant as defined in section 21 of Pakistan Penal Code, 1860, therefore, it was incumbent upon the Special Judge to have at once examined the respondent No. 4/ complainant upon oath under section 200, Cr. P.C. in the first instance and thereafter to proceed with the matter but the learned Special Judge after receiving the Direct Complaint sent it to Director, A.C.E. to initiate an inquiry, vide order dated 03.07.2014, which jurisdiction has not been vested with learned Special Judge under the Cr. P.C. It may be relevant to mention here that the proviso to sub-section (1) of Section 202, Cr. P.C. makes it obligatory on the Special Judge to examine the complainant on Oath before directing on inquiry or investigation on a direct complaint Courts is not provided in law.
6. As such, the registration of the case on a direct complaint against the applicant, without examining the complainant under section 200, Cr. P.C. upon Oath, is a procedural irregularity/illegality warranting interference of this Court, under its revisional jurisdiction under section 435, Cr. P.C. therefore, the impugned orders are hereby set- aside and matter is remanded to trial Court with direction to rectify the procedural irregularity/ illegality by recording statement of the complainant under section 200 Cr. P.C. in the first instance and thereafter to proceed further with the matter in accordance with law.
The Criminal Revision Application stands allowed in above terms. M.A. No. 6640/2015 being infructuous is dismissed accordingly.
JUDGE