IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Cr. Misc. Application No.D-346 of 2020

Constitution Petition No.D –898 of 2020.

 

                                                            Before;

                                                            Mr. Justice Khadim Hussain Tunio,

                                                            Mr. Justice Irshad Ali Shah

 

Petitioner/Applicant:      Through Mr. Munir Ahmed R.Siyal Director (Legal) FIA.

 

Respondents.                    Through M/s Shakeel Ahmed Ansari and Sikander Ali Junejo, advocates.

                                   

The State.                            Through Mr. Shafi Muhammad Mahar, DPG for the State.

 

                                                Mr. A. R Farooq Pirzada, Advocate Amicus-

Curiae.

 

Date of hearing:                06-04-2021.

Date of decision:               06-04-2021.

 

J U D G M E N T.

 

 IRSHAD ALI SHAH, J. The petitioner and the applicant, who are Inspectors at FIA Crime Circle Sukkur, by preferring Crl. Misc. Application under Section 561-A Cr.P.C and the petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, individually have mainly sought for direction against the of Sessions Judges and the Magistrates working under them to take cognizance of the offences relating to misappropriation of the funds in Benazir Income Support Program on submission of challan by FIA police.

2.         It is contended by learned counsel for the petitioner and the applicant that as per Section 177 Cr.P.C every offence ordinary is to be tried by the Court within local limits whereof, it has taken place, therefore, learned Sessions Judges and the Magistrates working under them to be directed to take cognizance of the offence of misappropriation of the funds in Benazir Income Support Program, on submission of challan submitted by FIA police, if it is committed within their local limits. In support of his contention, he relied upon letter No.Gaz/811-Z-14 (II) Cyber Crime dated 31-10-2019 of Registrar High Court of Sindh and case of Inayat-ur-Rehman and another Vs. The State (2015 P.Cr.L.J 1487).

5.         Learned DPG for the State did not oppose the above contention. However, it was contended by learned Amicus-Curiae and learned Counsel for the private respondent that the Federal Investigation Agency is constituted under special law, therefore special law in event of conflict has a preference over general law. By contending so, they were of the opinion that all the cases registered by FIA police, on account of misappropriation of the funds by public servant in Benazir Income Support Program are to be tried by Special Court Anti-Corruption (Central) at Hyderabad, which is constituted under Special Law. In support of their contention, they relied upon case of Syed Mushahid Shah and others Vs. Federal Investment Agency (2017 SCMR 1218).

5.         We have considered the above arguments and perused the record.

6.        As per mandate contained by section 177 Cr.P.C, every offence is ordinary to be tried by the Court within local limits whereof, it has taken place. The word ordinary used in above said provision is of importance; impliedly it goes to suggest that there is no absolute bar by trial of the cases by the Courts other than the one within local limits whereof, it has taken place. In the instant matter, the investigation of the case is conducted by FIA Police, it is an agency, which is constituted under special enactment (Act of VIII of 1975), therefore the cognizance whereof obviously is to be taken by Special Court, which is constituted under Special Law that in the present case is Special Court Anti-Corruption (Central) Hyderabad. In these circumstances, it would be hard to direct the Sessions Judges or the Magistrates working under them to take cognizance of the schedule offences without specified designation of powers, only for the reason that such offence has taken place within their local limits. If such directions are issued by way of judicial order, as is prayed for, then it would amount to make an encroachment over the function of the executive authority, which is authorized by law to make investment of the jurisdiction.

7.         True, the Registrar of High Court of Sindh under letter which is relied upon by learned counsel for the petitioner and the applicant has designated the learned District & Sessions Judge at Malir Karachi, Hyderabad, Sukkur and 1st Civil Judge & Judicial Magistrate of the said Districts to try the offences investigated by the Federal Investigation Agency. But such designation is only to the extent of taking cognizance of the offences which are punishable u/s 44 (1) of the Prevention of Electronic Crimes Act, 2016 at FIA Police Stations/Cyber Crime Reporting Centers at Karachi, Hyderabad and Sukkur, respectively and not beyond that. Needles to say that nothing in the said letter which may suggest that every Sessions Judge in province or Magistrate working under him are authorized to take cognizance of every offence investigation whereof is conducted by FIA Police.

8.        The case law which is relied upon by learned counsel for the petitioner and the applicant is on distinguishable facts and circumstances. It was the case relating to recovery of Pirated Books and there was dispute between Magistrates at Swabi and Peshawar with regard to their territorial jurisdiction. No such issue is involved in the instant matter.

9.        Based upon above discussion, the instant Cr. Misc. Application and Petition are disposed of accordingly, those even otherwise have not been filed by Federal Investigation Agency itself, but by its officials obviously in its individual capacity.

10.       Above are the reasons of short order dated 06-04-2021, whereby the instant Cr. Misc. Application and the Petition were disposed of.                          

                                                                                                                  J U D G E

 

                                                                                         J U D G E            

Nasim/Steno