Case Summary & Legal Holding

This judicial decision was delivered by the Lahore High Court (Honorable Mr. Justice Farooq Haider). The matter involves proceedings between Petitioner and Respondent, officially reported as 2026 LHC 1989. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

COURT: Lahore High Court (Honorable Mr. Justice Farooq Haider) DECISION DATE: 24-03-2026 TAGLINE: Section 63 Cr.P.C. is neither enabling nor vesting clause rather at the most can be termed as "clause of result or consequence clause" which functions as "adverbial clause". Offence under Section: 162 PPC is always committed by private person but tried by Special Judge Anti-Corruption appointed under Pakistan Criminal Law (Amendment) Act, 1958. CASE DETAILS: Criminal Proceedings 61369/19 ============================================================ Form No. HCJD/C-121 ORDER SHEET IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT

Case No. Writ Petition No.61369/2019

The State through Prosecutor General, Punjab Versus

Judicial Magistrate Section-30, etc.

Sr. No. Date of order Order with signature of Judge, and that of parties or counsel, where necessary. 24.03.2026 Rana Muhammad Shafique, Deputy Prosecutor General for the petitioner. Mr. Mudassar Naveed Chat tha, Additional Advocate General, P unjab alongwith Naqash, ASI DACE, Punjab, Lahore. Nemo for respondent No.2. Mr. Muhammad Rashid Hussain, Advocater for and with Shamim Khalida/respondent No.3 (respondent No.3 has been identified by her learned counsel). Respondent No.2 has been served through substituted mode i.e. publication in the newspaper and copy of newspaper in this regard is available on record as apprised by Additional Registrar (Court). Instant petition has been repeatedly called but no one has turned up on behalf of respondent No. 2. Therefore, respondent No.2 is being proceeded against ex-parte. 2. Through instant petition filed in terms of Article: 199 of the Constitution of Islamic Republic of Pakistan, 1973, following prayer has been made: - Writ Petition No.61369/2019 -: 2:-

“Under the circumstances, it is humbly prayed that the impugned Order dated 09 -08-2019 passed by Learned Judicial Magistrate Section-30, Lahore may very kindly be set aside in the interest of justice. Any other relief this Hon’ble Court deems fit may very kindly be granted. ” 3. Brief, however, necessary facts for decision of instant petition are that on the application of Shamim Khalida (now arrayed as respondent No.3 in the instant petition) addressed to Director General Anti -Corruption Punjab, L ahore, case vide F.I.R. No.02/2019 dated: 06.08.2019 under Section: 5 (2) of the Prevention of Corruption Act, 1947 read with Section: 161 PPC was registered at Police Station: DACE Punjab, Lahore (subsequently offence under Section: 162 PPC was also added in the case as apprised by learned Additional Advocate General, Punjab); raid was conducted by learned Judicial Magistrate Section- 30, Lahore Cantt and Rs.25000/ - were recovered from Faisal Karamat (now arrayed as respondent No.2 in this petition /accused in this case) which he received from Shamim Khalida (respondent No.3/complainant of the case) and he (Faisal) was arrested at the spot; on 07.08.2019 , application for physical remand of Faisal Karamat (mentioned above) was moved by Inspector Headquarter Police Station: DACE Punjab, Lahore for fourteen days, however, one day physical remand of the accused was granted, then on Writ Petition No.61369/2019 -: 3:-

08.08.2019, application for physical remand was again filed by Investigating Officer however again one day physical remand was granted and thereafter application for physical remand of the accused for twelve days was moved by Inspector Headquarter, P/S DACE Punjab, Lahore but said request was turned down and Faisal Karamat (accused mentioned above) was discharged from the case vide order dated: 09.08.2019 passed by learned Duty/Judicial Magistrate Section-30, District Court, Lahore (hereinafter called as impugned order) and relevant portion of the same is hereby reproduced:- “Investigation Agency has requested for further physical remand of the accused. Record perused. Perusal of record provides that FIR was originally lodged u/s 161 PPC & 5(2)47 PCA, however, later offence u/s 162 PPC has also been added. The perusal of record provides that the complainant has alleged that the accused is “Patwari”. However, the perusal of investigation clearly prov ides that the accused Faisal Karamat is not public servant. If he has committed fraud, it does not come in the purview of Anti-Corruption Authority. Investigating officer was given an opportunity to explain that how the above said offences are made out aga inst the present accused, but he has filed to do so. Hence, in the absence of any ingredients to attract the above said offences, the accused Faisal Karamat is hereby discharged in this case. He be released forthwith if not required in any other case.” 4. Learned Deputy Prosecutor General for the petitioner submits that Faisal Karamat (respondent No.2/accused in the case) was caught red handed by learned Magistrate with tainted money i.e. Rs.25000/- which he ha d taken from Shamim Khalida (mentioned above); further submits that there was sufficient evidence available on the record in support of the allegation levelled against Faisal Karamat and grant of his physical remand was necessary for further Writ Petition No.61369/2019 -: 4:-

collection of e vidence i.e. completion of investigation but his physical remand was not granted which has caused failure of justice; adds that impugned order dated 09.08.2019 passed by learned Duty/Judicial Magistrate Section -30, District Courts Lahore is against the law as well as facts of the case and finally prays for setting aside the impugned order and remanding the matter for fresh decision on the application for physical remand of the accused. 5. Learned Additional Advocate General, Punjab submits that he does no t support the impugned order qua discharge of Faisal Karamat (respondent No.2 in this petition/accused in the case) from the case as same is against the law & facts of the case and requests for setting aside the same as well as remanding the matter for fresh decision on application for physical remand of the accused filed by Inspector Headquarter of Police Station: DACE Punjab, Lahore. 6. Learned counsel appearing on behalf of Shamim Khalida (respondent No.3 in this petition /complainant of the case ) while adopting the arguments delivered by learned Deputy Prosecutor General as well as learned Additional Advocate General, Punjab , requests for remanding the matter for re-deciding the application for physical remand of the accused. 7. Arguments heard and available record perused. Writ Petition No.61369/2019 -: 5:-

8. Discharge of a person apprehended has been mentioned in Section: 63 of the Code of Criminal Procedure, 1898 (hereinafter referred as code) which is hereby reproduced:- 63. Discharge of person apprehended. No person who has been arrested by a police -officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. Perusal of Section: 63 of Code reveals that it is not confined only to the accused but word “Person” has been mentioned in it and furthermore, language of the same makes it crystal clear that it is neither enabling nor vesting clause containing any power but merely containing detail of modes of discharge of the person apprehended/arrested by the police. T hough in Section: 63 of the Code, it has been mentioned that person arrested by police shall be discharged on his bond, or on bail or under the special order of a Magistrate yet it is not mentioned therein that what would be the condition and form of the bond, on whose order and before whom it would be executed, similarly who will grant bail and what would be parameters/grounds for the same and so much so that when and under what circumstances as well as on the basis of which considerations/factors, Magistr ate shall pass special order for discharge of arrested person is also not detailed therein, so, it can be safely termed as “clause of result or a consequence clause” which functions as adverbial clause. Writ Petition No.61369/2019 -: 6:-

However there are various enabling provisions in the Code containing detail of the circumstances and reasons as well as form of bond to be executed by the arrested person for release; there are also express provisions in the Code governing grant of bail to the arrested accused. Furthermore, special order of the Magistrate for discharge of the persons apprehended /arrested by police includes order passed by Magistrate under Section: 167 of the Code, when arrested person is produced before Magistrate competen t to take cognizance, try the case or send it for trial, who finds that there is no incriminating material available against the arrested person and discharges him from the custody while exercising inherent power vested with him; similarly when police find s material collected against arrested person as insufficient then such special order can be got passed under Section: 169 of the Code read with Rule 24.7 of the Police Rules, 1934. While finding insufficient material against the accused, in negative report prepared under Section: 173 of the Code, Magistrate can pass such special order qua discharge of the accused. Furthermore, even before the commencement of trial, if after scanning the record, Magistrate comes to the conclusion that sufficient grounds do n ot exist to proceed, he can discharge the accused. But order qua discharge is always treated as administrative/executive order and any irrevocability cannot be attached to it. Writ Petition No.61369/2019 -: 7:-

Allegation levelled against Faisal Karamat (now respondent No.2) as per crime report and material available on the record is that he obtained illegal gratification from Shamim Khalida (now respondent No.3), and was caught red handed with tainted currency notes during raid conducted by the learned Magistrate and he (Faisal Karamat) was acting as Munshi (منشی) of “Revenue Patwari”. Aforementioned allegation prima -facie attracts offence under Section: 162 PPC which is hereby reproduced:

162. Taking gratification, in order , by corrupt or illegal means, to influence public servant. Whoever accepts or obtains, or agrees to accept, or attempts to obtain , from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Federal or any Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Aforementioned offence falls in the schedule of the Pakistan Criminal Law (Amendment) Act, 1958 and same is also hereby reproduced:- (a) Offences punishable under Sections 161 to 166, 168, 217 and 218 of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith. (b) Offences punishable under section 403 to 409 , 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public se rvant as such or by the person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. (c) Offences punishable under the prevention of Corruption Act, 1947, and as attempts, abetments and conspiracies in relation there to or connected therewith. Writ Petition No.61369/2019 -: 8:-

And the offences specified in above -mentioned schedule are exclusively triable by the Special Judge under Section: 5 of the Act (ibid) and same is also reproduced:- 5. Offences to be tried by Special Judges. (1) Notwithstanding anything contained in the code of Criminal procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge. (2) The appropriate Government may, from time to time by notification in the official Gazette, Include in the Schedule such other offences as it deems necessary or expedient. (3) All cases relating to the offences specified in the Schedule and pending in any Court other than the Court of a Special Judge immediately before the commencement of the Criminal Law (Amendment) Act, 1953, or this Act shall, on such commencement, stand transferred to the Court of the Special Judge having jurisdiction over such cases. (4) Whenever an offence is included in the Schedule by a notification of the appropriate Government made under subsection ( 1), all cases relating to that offence pending in any court other than the Court of a Special Judge Immediately before such notification shall stand transferred to the court of the Special Judge having jurisdiction over such cases. (5) In respect of case s transferred to a Special Judge under the provisio to sub -section ( 2) o f Section (4) or by virtue sub-section (3) or sub -section (4) of this section, such Judge shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence in the case before transfer and may act on the evidence already recorded by or produced before the court which tried the case before the transfer. (6) For the purpose of trial before a Special Judge , the provisions of Chapter XVIII of the Court of Criminal Procedure,1898, shall not be applicable but a special Judge may, in any case where he deems it necessary, or der an investigation by any police officer in who’s jurisdiction the offence was wholly or partly committed. (7) When trying an offence under this Act a Special Judge may also charge with and try other offences not so triable with which the accused may, under the provisions of the Code of Criminal Procedure, 1898, relating to the joinder of charges, be charged at the same trial. It is relevant to mention here that Special Judge is appointed under Section: 3 of the Act (ibid), who under Section: 4 of the Act (ibid) has jurisdiction and takes cognizance of the offences committed or Writ Petition No.61369/2019 -: 9:-

deemed to have committed and triable under the Act u pon complaint or upon report in writing by police officer ; Sections 3 and 4 of the Act (ibid) are hereby reproduced:- 3. Appointment of Special Judges. (1) The appropriate Government shall, by notification in the Official Gazette, appoint as many Special Judges as may be necessary to try and punish offences specified in the Schedule. Appropriate Government shall, by notification in the Official Gazette, appo int as many Special Judges as may be necessary to try and punish offences specified in the Schedule. (2) No person shall be appointed as Special Judge unless he— 1[(a) is, or is qualified to be a judge of a High Court: or] (b) has, for a period of not less than three years, exercises, whether continuously or not, the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, or a District Magistrate or an Additional District Magistrate”. 4. Jurisdiction of Special Judges and cognizance of cases by them. (1) A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cogni zance of any offence committed or deemed to have been committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer. (emphasis added) (2) Where two or more Special Judges have jurisdiction, wholly or partly in the same territorial limits, the appropriate Government shall, by notification in the official Gazette, declare one of them to be the Senior Special Judge for that area. (3) An offence shall be tried by the Special Judge within the territorial limits of whose jurisdiction it was committed or deemed to have been committed, or where there are more Special Judges than one having jurisdiction within the same territorial limits, by such one of them as may be specified in this behalf by the Senior Special Judge. Provided that the Senior Special Judge may, by order in writing transfer, at any stage of the trial, any case from the Court of one Special judge to the Court of anot her Special Judge having jurisdiction within the same territorial limits. (4) When an offence triable under this Act is committed outside Pakistan, it shall, for the purposes of this Act, be deemed to have been committed within the territorial limits of the jurisdiction Writ Petition No.61369/2019 -: 10:-

of the Special Judge in which the person committing the offence is found. So, though offence under Section: 162 PPC is committed by private person and not public servant, yet same is included in the schedule of Pakistan Criminal Law (Amendment) Act, 1958 and thus triable by Special Judge appointed under Pakistan Criminal Law (Amendment) Act, 1958 being scheduled offence and furthermore cognizance of said offence is also taken u nder Section: 4 of Pakistan Criminal Law (Amendment) Act, 1958 by Special Judge appointed under Pakistan Criminal Law (Amendment) Act, 1958; in this regard guidance has been sought from the case of “MUHAMMAD RAFIQ versus THE STATE ”(PLD 1985 SC 225) and relevant portion from the same is hereby reproduced:- “5. It was contended by the petitioner's counsel that since he (the petitioner) was admittedly not a 'public servant' and was merely assisting the Patwari in his private capacity in order to learn the wo rk, the learned Special Judge, Anti -Corruption did not have jurisdiction to try the petitioner and that he could only have been tried by a Magistrate of the first, class, as provided in the Ist Schedule to the Criminal Procedure Code. In support of this contention he relied on Syed Ziaul Hassan Zaidi v. The State (1) and Wahid Bukhsh v. The State (2), wherein it has been held that where the accused person is neither a public servant nor is he shown to be performing duties in the capacity of a public servant at the time of alleged offence, a Special Judge, Anti -Corruption had no jurisdiction to try him for offences under section 161, P. P. C. or section 5(2) of the Prevention of Corruption Act, 1947. 6. We are afraid the contention raised by the learned counsel for the petitioner is misconceived and the above -noted two judgments referred to by him do not advance the petitioner's case, because in those cases the accused were not tried on a charge under section 162, P. P. C. as in the present case but were tri ed and convicted under section 161, P. P. C. or section 5(2) of the Prevention of Corruption Act, 1947. The general law, making bribery, corruption and demanding or accepting illegal gratification punishable offences contained in sections 161 to 166 of the P. P. C. It would be noticed that most of Writ Petition No.61369/2019 -: 11:-

the offences mentioned in the Schedule relating to demand or receipt of bribe by public servants. But a reading of sections 162 and 163, P. P. C. would show that they make it punishable even for a private person to take gratification for himself or for any other person, as a motive or reward for exercising influence with a public servant so as to induce him to show favour to the person from whom bribe is received. (emphasis added) 7. Prevention of Corruption Act, 1947, however a special legislative measure to curb bribery and corruption amongst the public servants. As is clear from the pre-amble of the said Act, it was enac ted to make effective provisions for the prevention of bribery and corruption. The offences punishable under that Act are contained in section 5(1) of the Act. They only relate to demand or acceptance of bribe by public servants and are punishable under section 5(2). The Pakistan Criminal Law Amendment Act (XL of 1958), which is yet another special law relating to such offences, was enacted for providing procedure for "speedier trial and more effective punishment" of persons accused of such offences. Section 2(b) of the said Act defines 'public servants'. Section 3 provides that Special Judges may be appointed to try offences punishable specified in the Schedule to the said Act, while section 5(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or any other law, all offences specified in the Schedule to the said Act shall be triable exclusively by a Special Judge. A look at the Schedule would show that clause (a) thereof includes offences punishable, inter alia, und er sections 161 to 166, P. P. C. and clause (c) mentions offences punishable under the Prevention of Corruption Act, 1947, as also attempts and abetments and conspiracies. 8. It is pertinent to note that in the present case the petitioner was tried for an offence under section 162. P. P. C. which reads as follows:- "162. Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to forbear to do any official act, or in the exercise of the official functions, or to render or attempt to render any service or disservice to any person with the Central or Provincial Government or Legislature, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both." Now as already observed section 5(1) of the Pakistan Criminal Law Amendmen t Act (XL of 1958), alongwith the Schedule thereto clearly shows that an offence under section 162, P. P. C. though not committed by a public servant, is exclusively triable by a Special Judge, Anti -Corruption. As such the petitioner, Writ Petition No.61369/2019 -: 12:-

who was not a public servant, was rightly tried by a learned Special Judge for offence committed under section 162, P. P. C. In view of the above discussion the petition is dismissed as having no force.”

Hence, learned Duty/Judicial Magistrate Section -30, District Courts, Lahore who passed the impugned order was neither having jurisdiction to try the offence under Section: 162 PPC nor send it for trial. By now it is well settled that Magistrate to whom accused is forwarded under Section: 167 Cr.P.C. for the purpose of physical remand, he may, whether he has or has no jurisdiction to try the case authorize from time to time the detention of the accused in such custody as he thinks fit, for a term not exceeding fifteen days in the whole , however, if he has no jurisdiction to try the case or send it for trial, and consider ed further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction ; in this regard Section 167 Cr.P.C. is hereby reproduced:- 167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer incharge of the police station or the police- officer making the investigation if he is not below the rank of sub -inspector shall forthwith transmit to the 1[nearest Magistrate] a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. 2[Explanation] (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jur isdiction to try the case from Writ Petition No.61369/2019 -: 13:-

time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or 3[send] it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate of the third class, and no Mag istrate of the second class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police. (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. 4[(4) The Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge.] 5[(5) Notwithstanding anything contained in Sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under sub -section (2) is a female, the Magistrate shall not, except in the cas es involving Qatl or dacoity supported by reasons to be…

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