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Criminal Revision Application No.104 of 1983, decided on 13th November, 1985.
--Ss.200 & 204--Penal Code (XLV of 1860), S.448/161--Prevention of Corruption Act (II of 1947).S.5(2)--Complaint case--Issuance of notice to accused for appearance--Complaint filed in Court of Special Judge, which was forwarded to Police for investigation and report--Original complaint filed before Special Judge was under investigation before Police and the Court had not taken cognizance of offence--Held, there was no cause before Special Judge for making order--or appearance of applicant/accused--Notice set aside.
---Ss.200 & 204--Penal Code (XLV of 1860), S.448/161--Prevention of Corruption Act (II of 1947), S.5(2)--Complaint case--Non-compliance of provisions of S.200, Cr.P.C. --Issuance of notice to accused for appearance--Validity of such notice--Curt issuing notice to accused for appearance without proceeding with complaint in accordance with provisions of S.200, Cr.P.C.--Issuance of notice to accused- held, was not warranted by law.
Qazi Khalid Ali for Applicants.
M.L. Shahani for the Respondent.
Nazir Ahmed Chaudhry for the State.
Date of hearing: 13th November, 1985.
The applicants have called in question an order dated 23-7-1983 passed by the learned Special Judge, Anti-Corruption (Central), Karachi, requiring them to appear in the Court in connection with a direct complaint filed against them by Sarwar Ali Khan, the respondent No-2. The learned counsel for the applicants has urged that the learned Special Judge had issued process to the applicants for their appearance in the Court before taking cognizance of the offence. According to him, the learned Special Judge did not proceed with the complaint in accordance with law and yet issued process to the applicants and the order of the learned Judge amounts to abuse of the process of the Court. On the other hand, the learned Advocate for the respondent No. 2/complainant has contended that the learned Special ' Judge, after entertaining the complaint, has simply issued notice to the applicants /accused and no illegality has been committed in doing so. According to him, the issuance of the notice does not amount to any adverse orders against the applicants and no action under revisional jurisdiction is called for.
The learned counsel appearing for the State has expressed the view that no proceeding is pending before the Court and no cognizance of the offence has been taken and ther6fore Revision Application does not lie.
It appears from the R & P that a direct complaint in respect of commission of an offence punishable under section 448/161, PPC r/w section 5(2)(11) Act, 1947 was filed in the Court of Special Judge, Central Karachi on 22-2-1983 and it was forwarded to the Deputy Director, FIA, Karachi for investigation and report. Thereafter, another "complaint" was filed on 23-7-1983 wherein certain allegations were made against the applicant Altaf. The learned Special Judge ordered for issuance of notice to the accused/appellants for 31-7-1983. A notice was issued to all the 4 applicants that they should appear in the Court on 31-7-1983. It is evident that the original complaint filed before the learned Special Judge was under the investigation by the Deputy Director FIA, Karachi. The accused 'complaint' appears to be an application in connection with tnp earlier complaint as indicated in paragraph No.1 of the application Since the learned Special Judge had not taken cognizance of the offence, which was still under investigation, there was no cause before him for making order for appearance of the applicant /accused before him on the basis of the application dated 20-7-1983 presented on 23-7-1983. Even if the second 'complaint' were treated as a fresh complaint, the learned Judge issued the notice without proceeding with tie complaint in accordance with the provisions of section 200, Cr.P.C. In that case also, the issuance of notice was not warranted by law. Accordingly, the order passed by the learned Special Judge Court to the abuse of process of the Court and is quashed.
M.A.K./A-111/K Order fished.
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