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Ss. 435 & 439‑Prevention of Corruption Act (II of 1947), S. 5(2) Penal Code (XLV of 1860), Ss. 109/ l2 & 120‑B‑Criminal Law (Special Provisions) Ordinance (II of 1968), S. 4‑Criminal Law (Special Provisions) (Application to the Provincially Administered Tribal Areas of Baluchistan) Regulation (11I of 1979), para. 4‑Jurisdic tion of Special Judge (Anti‑Corruption)‑‑Case against accused pending before Special Judge on coming into force of Regulation III of 1979, under which all pending cases under Frontier Crimes Regulation of 1901 automatically stood transferred for trial under Ordinance II of 1968‑Case against accused, therefore, not hit by Regulation III of 1979‑Order of Special Judge refusing cognizance of case on ground that offences against accused were exclusively triable under Ordinance 11 of 1968, held, was illegal.

‑‑ Ss. 435, 439 & 561‑A‑Criminal Law (Special Provisions) Ordi nance (II of 1968), S. 4‑‑Criminal Law (Special Provisions) (Application to Provincially Administered Areas of Baluchistan) Regulation (III of 1979), para. 4‑Prevention of Corruption Act (II of 1947), S. 5 (2) Penal Code (XLV of 1860), S. 120‑B‑Criminal Procedure Code (V of 1898), S. 561‑A ‑‑Quashing of proceedings Case against accused liable to be remanded to Special Judge (Anti -Corruption) ‑Case related to an incident taking place in 1964 and presented for trial in 1968. before Court but on account of legal technicalities regarding forum of its trial it could not b: concluded in a long space of time for no fault of accused‑Accused already going through ordeal of mental as well as financial torture and agony which was sufficient punishment for them‑Case not remanded to Special Judge but quashed by High Court under inherent jurisdiction under S. 561‑A, Cr. P. C. in circumstances.

Muhammad Yousuf Ch., Asstt. A.‑G. for the State.

M. Moquim Ansari for Respondent.

Nemo For Respondents Nos. 1, 2, 3, 5, 6 and 9 (called absent)

Respondent No. 4 in person.

Dates of hearing : 2nd and 3rd September, 1985.

‑‑By this revision petition the State has impugned the orders, dated 2z‑3‑1981 and 28‑3‑1981 passed by the learned Special Judge, Kalat, whereby charges framed under section 5 of the Prevention of Corruption Act of 1947 (hereinafter referred as the Act) and section 109/12, P. P. C. against the respondents for want of jurisdiction, were cancelled.

2. The brief facts giving rise to this petition are that in the year 1964 Messrs Saifuddin, Executive Engineer, Faizullah, S. D. O. Noor‑ul -Haq, Accounts Clerk and Muhammad Khalique, Overseer of Irrigation Department of Erstwhile Government of West Pakistan in collaboration with the respondents 1 to 6 the contractars Messrs Tribal Friends Co. defrauded the Government of Rs. 75,496 in respect of construction of Beji Irrigation Scheme now falling within the tribal belt of District Loralai of Province of Baluchistan, on 9‑7‑1964. F. I. R. was registered with Anti‑Corruption Establishment who on 8‑2‑1968 after usual investigation submitted challan under section 5(2) of the Act read with sections 409 and 120‑B of the Pakistan Penal Code (referred hereinafter of the Code) before the Court against the respondents and some other persons who are not before us in this revision petition.

3. Their case came for trial before the learned Special Judge, Hyderabad at Quetta Camp on 10‑7‑1968 who refused to take cognizance of the case on the ground that the offences were exclusively triable under the Criminal Law (Special Provisions) Ordinance II of 1968 (referred hereinafter as the Ordinance) as he had no jurisdiction to try the accused in the words as follows :‑

"On 25‑3‑1968 accused Saifuddin Malik and twelve others were challaned in this Court to stand their trial under sections 409, 109 of the P. P. C. read with 5(2) of Act II of 1947. West Pakistan Ordi nance No. 2 of 1968 came in operation on 10th of January, 1968. This case camp to this Court subsequent to that date. Section 33 of the Ordinance does not, therefore, apply here.

Clause (e) of subsection (2) of the Ordinance defines the word scheduled offence as an offence made punishable by the P. P. C.

I may repeat that accused have been challaned to stand trial under sections 409 and 109 of the P. P. C. which sections are to read with section 5(2) of Act II of 1947. The ingredients of the offences covered by both the acts are the same. Evidently police has desired that trial be held for offences falling under sections 409 and 109 of the P. P. C. By saying that these are to be. read with section 5(2) they have in no way indicated that the trial is to be for offences covered by section 5(2) of Act II of 1947. The words read with are thus clearly redundant. 'No one can be punished for the same felony twice. Here it must be added that even under Act 40 of 1958 offence covered by section 409 of the P. P. C. is a scheduled offence for the purposes of the said Act.

Section 3 of the Ordinance says :‑

"Notwithstanding anything contained in any other law for the time being in force no scheduled offence shall be tried except in the manner provided by this Ordinance."

The following section declares that the Deputy Commissioner shall have exclusive jurisdiction to take cognizance of a scheduled offence.

This crime was committed within the Divisions of Quetta and Kalat where Criminal Law Ordinance of 1968 applies.

Subsection (3) of section 4 of the Ordinance is very material for the purpose of deciding, the question of jurisdiction. It reads :‑

"Where it appears to any . . . . . Court . . . . . enquiring into or trying any offence that such offence is a scheduled offence, such Court shall stay further proceedings in respect of such offence and refer it to the Deputy Commissioner for proceeding in accor dance with the provisions of this Ordinance."

By now it is settled law that the rule of procedure has retrospective effect. It follows that promulgation of the Ordinance cautioned this Court to read the red signal and halt all movements. This Ordinance has been brought to my notice only today. Therefore, in obedience to supreme will of the rule‑making authority I stop the proceedings forthwith and direct that the papers be sent to the Court of the Deputy Commissioner."

4. Executive Engineer Saifuddin who is not before us in Criminal Revision No. 4287 of 1968 challenged the abovesaid order of the learned Special Judge in the erstwhile High Court of West Pakistan who on 24‑3‑1970, while relying on case of State v. Syed Mir Ahmad Shah and another (P L D 1970 Quetta 49), allowed the petition and directed trial of the official accused under section 5(2) of the Act before the Special Judge and the private persons under the Ordinance before a Tribunal. In view of the decision of the High Court the challan of the case was returned to the P. D. S. P. by the learned Special Judge, Hyderabad.

5. It seems that the same challan of the case was again for the reasons not disclosed before us presented for trial before the Special Judge. Kalat against the official as well as private respondents. On 26‑2‑1981 charges for offences under sections 5(2) of the Act and 409/120‑B of the Code were framed against all of them to which they pleaded not guilty. Before any proceedings in the case could be initiated by the learned Judge an application on behalf of the respondents was moved before him agitating that the Act was not enforced in the tribal areas of Baluchistan, hence the Special Judge had no jurisdiction to try their case. On their objections, on 22‑3‑1981 and 28‑3‑1981 the learned Judge cancelled the charges famed against the respondents and took the same view as that was taken by the learned Special Judge, Hyderabad on 10‑7‑1968 .The above‑said both orders, dated 22‑3‑1981 and 28‑3‑1981 passed by the learned Special fudge have been challenged in this revision petition before this Court by the State.

6. Mr. Muhammad Yousuf Chaudhary the learned A. A.‑G. appeared for the State whereas Mr. Muhammad Moquim Ansari appeared for one of the respondents. We heard both of them and perused the record of the learned Special Judge which is before us

7. Mr. Muhammad Yousuf Chaudhary, the. learned Assistant Advocate‑General has challenged the impugned orders on the grounds :

(i) The Prevention of Corruption Act of 1947 had been extended to Tribal areas of Baluchistan on 6‑4-1947 even before partition of the sub‑continent of India.

(ii) vide Anti‑Corruption Laws (Application to Tribal Areas) Regulation, 1966, the Criminal Law (Amendment) Act, 1958 has been extended to the tribal areas of Baluchistan.

(iii) That Criminal Law (Special Provisions) Ordinance II of 1968 has been extended to the tribal areas of Baluchistan on 16‑10‑1979 through Regulation of 1979:

(iv) That the Criminal Law (Special Provisions) Ordinance II of 1968 has been extended in tribal areas of Baluchistan. The findings of the Erstwhile High Court of West Pakistan, dated 24‑3‑1970 based on case of Mir Muhammad P L D 1970 Quetta 49 requires reconsideration.

(v) That once the charge against the respondent was framed by the learned Special Judge he should have proceeded with and decided it on merits."

8. Mr. Muhammad Moquim Ansari the learned counsel for one of the respondents vehemently repudiated the contentions raised by the learned A. A.‑G. and tried to defend both the orders of the learned Special Judge but, however, in the alternative too while relying on Criminal Acquittal Appeal No. 20 of 1981, decided on 27‑3‑1984 by this Court, P L D 1980 Kar. 244 and P L D 1975 Lab. 1205 and P L D 1975 Lab. 524 urged that as the respondents have already mentally suffered for a period more than about 14 years so the remand of case for retrial was neither expedient nor in the interest of justice.

9. It may be observed that the .Act has been extended to the trial areas since 6‑4‑1947 which is evident from the Notification No. 100‑BGP, dated 8th April, 1947 which reads as under :‑

"No. 100‑BGP.‑In pursuance of subsection (2) of section 95 of the Government of India Act, 1935, the Governor‑General in his discretion is pleased to direct that the Prevention of Corruption Act, 1947 (II of 1947), shall apply to British Baluchistan."

10. This Notification was not brought to the notice of the learned Special Judge which is evident from his observation in the judgment that the P. D. S. P. had failed to produce the law whereby the Act was made applicable in the tribal areas.

11. Besides vide . . . . . Anti‑Corruption Laws (Application of Tribal Areas) Regulation of 1966, the Criminal Law Amendment Act of 1958 has been extended to the Tribal Areas on 22‑3‑1968. By this enactment the jurisdiction for trial of the cases falling under the Act was exclusively conferred upon the Special Judge.

12. Vide Criminal Law (Special Provisions) (Application to the Provincially Administered Tribal Areas of Baluchistan) Regulation, 1979, the Ordinance on 16‑10‑1979 was enforced in the tribal areas for the first time. This fact perhaps as it appears from the order, dated 24‑3‑1970 of the Single Judge of the High Court of erstwhile West Pakistan while placing reliance on case of State v. Mir Ahmad Shah and another was not brought to notice of the learned Judge who, therefore, took such view. We respectfully for the above‑said reasons do not agree with the view taken by him to that context.

13. At present the Ordinance since 1979 covers areas falling within tribal areas including the District of Loralai where before that the frontier Crimes Regulation of 1901 was in vogue. Under section 4 of the Regula tion of 1973; all pending cases under the Frontier Crimes Regulation A automatically stood transferred for trial under the Ordinance. But this saving clause does not contain any provision regarding trial of any other case not pending for trial before F. C. R. Court like the instant case which was pending before the Court of Special Judge.

14. The Statute is silent in that respect. however, would refrain from entering upon detailed scrutiny in that context as the same was neither a proposition nor discussed at the bar before us.

15. However, on face of it the orders, dated 23‑2‑1981 and 28‑2‑1981I of the learned Special Judge appear to be illegal and as such could not be allowed to sustain hence both the orders are set aside.

16. On setting aside the abovesaid orders whether it would be justifiable to remand the case for re‑trial against the private as well as the official respondents trial afresh. So, for the forum for trial of the official respondents is concerned undisputed]) is the Court of Special Judge but fur trial of the private respondents the forum is yet to be determined. Be that as it may but presently by setting aside the both impugned orders the case shall revert to the same place, position and stage where it was immediately before passing of the impugned orders and for that purpose the case as a whole would require to be remanded to the same Court of Special Judge for further action in the matter for' disposal according to law.

17. However, we are really not inclined to remand the case fort retrial in the circumstances, when the case relates to incident of 1964, presented for trial on 8‑12‑1968 before the Court but on account of legal techanicalities regarding the forum of its trial it has not been conclude in a long span of period of about 14 years for no fault of theirs. The respondents have already gone through ordeal of mental as well as financial torture and agony, which by itself is sufficient punishment for them. In that case to meet the ends of justice we would like to invoke our inherent jurisdiction under section 561‑A, Cr. P. C. and quash the' proceedings against them and set then at liberty. At the time of the admission, of the petition bailable warrants for attendance of respondents were issued. They had furnished the bail bonds accordingly. Their bail bonds stand discharged.

18. The petition is disposed of accordingly.

19. This is reasoning of our short order dated 3rd September, 1985.

M. Y. H. Proceedings quashed.

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