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Criminal Appeal No. 250 of 1985, decided on 20th November, 1985

‑‑‑S. 409/420 / 467/468 / 471/379‑‑Retrial‑‑Public servants alongwith non‑public servants tried by Special Judge, Anti‑Corruption Public servants acquitted by Special Judge‑‑Non‑public servants directed to be retried by Magistrate of competent jurisdiction After acquitting public servants, Special Judge, held, could not direct retrial of nor‑‑public servant co‑accused‑‑Judgment relating to non‑public servant accused was, therefore, set aside.

Madam Noor. Jehan v. Syed Shaukat Ali Rizvi and others P L D 1965 Kar. 362 and Bashir Beg and another v. The State 1984 P Cr. L J 816 ref.

Zaka‑ur‑Rehman Lodhi for Appellant.

Sh. Nasee‑ud‑Din Ahmad for the State.

Date of hearing: 20th November, 1985.

This Criminal Appeal arises from the judgment of learned Special Judge, Anti‑Corruption Sargodha, whereby he, on 19‑2‑1985 while acquitting Ghulam Samdani, Nazir Ahmad son of Ali Muhammad and Allah Ditta, the public servants of the charges under section 409/420/467/468/379, P.P.C. directed the retrial of Waheed‑ur‑Rehman appellant and Nazir Ahmad son of Mubarik Ali co‑accused, on the ground that they being non‑public servants, he could not try them. The learned Special Judge sent the case to the learned Sessions Judge, Faisalabad for entrusting the same to a Magistrate of competent jurisdiction, hence this appeal by Waheed‑ur‑Rehman accused.

2. Mr. Zaka‑ur‑Rehman, the learned counsel for the appellant submits that after having acquitted the public servants the learned Special Judge Anti‑Corruption had no authority to direct the retrial of non‑public servant co‑accused. The learned counsel relies on 'Madam Noor Jehan v. Syed Shaukat Ali Rizvi and others' reported as PLD 1965 Kar. 362. On the other hand, the learned counsel for the State has supported the judgment of the trial Court. He relied on 'Bashir Beg and another v. The State reported as 1984 P Cr. L J 816.

3. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant inasmuch as, had the public servants not been the co‑accused, 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 co‑accused who are non‑public servants. He should have left the matter of their prosecution to the State. The case relied on by the learned counsel for the State is quite distinguishable.

4. For what has been stated above, the appeal is accepted and the impugned judgment so far as it relates to Waheed‑ur‑Rehman and Nazir Ahmad co‑accused, is set aside. It would be open to the State to prosecute the accused before a Court of competent jurisdiction, if so advised.

S.A. Appeal accepted.

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