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Criminal Appeal No. 36 of 1986, decided on 12th March 1986.

‑‑‑5.346‑‑Penal Code (XLV of 1860), S.409/420/468/471/109‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Special Judge while acquitting public servants (co‑accused) directing for submission of file to Sessions Judge under S.346, Cr.P.C. with request to entrust same for trial of non‑public servants (accused) to Magistrate‑‑‑ After having acquitted public servants of charges, Special Judge, held, could not have directed retrial of non‑public servants‑‑Special Judge, Anti‑Corruption, could not have submitted file to Sessions Judge at time of final judgment‑ Special Judge, if desired to submit file should not have decided the case and should have made reference in accordance with provisions of 5.346, Cr.P.C.‑‑Order of sending of file for retrial of non‑public servants set aside in circumstances.

Ch. Muhammad Ashraf Azeem for Appellant.

Arif Sajjad Khan for the State.

Date of hearing: 12th March 1986.

This Criminal Appeal arises for the judgment of learned Special Judge, Anti‑Corruption, Sargodha and Faisalabad Division, whereby he on 1‑12‑1985 while acquitting the public servants, co‑accused of the charges under section 409/420/468/471/109, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947, directed that the file of the case be submitted *to the learned Sessions Judge, Jhang under section 346, Cr.P.C. With the request to entrust the same for trial of Nazir Ahmad appellant and others, non‑public servants accused, to the Court of competent Magistrate.

2. The learned counsel for the appellant submitted that after having acquitted the public servants of the charges, the learned Special Judge, Anti‑Corruption, had no authority to submit the file to the District Magistrate for entrusting it to a competent Magistrate. The learned counsel for the State while supporting the impugned order maintained that the learned Special Judge, Anti‑Corruption was quite competent to send the case to the Sessions Judge for entrustment to a competent Magistrate under section 346, Cr.P.C.

3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant, in that, had the. public servants not been the co‑accuser , the learned Special Judge, Anti‑Corruption could not have taken cognizance of the case. So, after having acquitted the public servants of the charges, he could not have directed the retrial of the non‑public servants co‑accused: The impugned judgment shows that the file of the case was sent to the learned Sessions Judge for entrusting the same for the trial of non‑public servants accused to the Court of competent Magistrate under section 346, Cr.P.C. I am of the view that the learned Special Judge, Anti‑Corruption could not submit the file to the learned Sessions Judge in manner in which he has sent. The relevant Section may be reproduced advantageously.

Section 346, Cr.P.C.:

"If, in the course of an enquiry or trial before a Magistrate in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried, or sent for trial to the Court of Sessions or the High Court, or by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate having jurisdiction as the Sessions Judge directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or send case for trial to the Court of Sessions or the High Court."

From the bare reading of the provision of law reproduced above, it is very much obvious that the learned Special Judge Anti‑Corruption could not have submitted the file to the learned Sessions Judge at the time of final judgment. If the learned Special Judge desired to submit the file to learned Sessions Judge under section 346, Cr.P.C. then he should not have decided the case and made reference to the learned Sessions Judge in accordance with the provisions of section 346, Cr.P.C.

4. For what has been said above, the impugned order so far it relates to the sending of file of the case to the learned Sessions Judge, Faisalabad for entrusting the same for trial of the non‑public servants accused to a Court of competent Magistrate, is set aside. 1t would, however, be open to the State to prosecute the non‑public servants accused in accordance with law.

H.A.K. Appeal accepted.

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