PLJ 2021 SC (Cr.C.) 30
[Appellate Jurisdiction]
Present:
Mushir Alam, Mazhar Alam Khan Miankhel
and Yahya Afridi, JJ.
ALI
GOHAR and others--Petitioners
versus
PERVAIZ
AHMED and others--Respondents
Crl. P.
No. 230 and Crl. Misc. Appln. No. 301 of 2019,
decided on 30.6.2020.
(On appeal against the judgment dated 21.02.2019 passed by the
High Court of Sindh, Bench at Sukkur in Criminal Miscellaneous Application No.
D-998 of 2018)
Anti-Terrorism Act, 1997 (XXVII
of 1997)--
----S. 25--Remedy of an
appeal--Conviction or acquittal of accused--Now, to facts of present case, Section
25 of Act provides remedy of an Appeal only against a “final” judgment of ATC
resulting in conviction or acquittal of accused--An order passed under Section
23 of Act, not being “final” in view of express provision of Section 25, could
not be assailed by aggrieved party in appellate remedy provided under Act--This
would then lead aggrieved party to seek its remedy under revisional or inherent
jurisdiction of High Court provided under Cr.P.C, if available--To examine such
prospects for aggrieved party, we must review relevant provisions empowering High
Court to exercise its revisional and inherent jurisdiction under Cr.P.C. [Pp. 39 & 40] A
Criminal Procedure Code, 1898 (V
of 1898)--
----S.
561-A--Inherent jurisdiction--Scope of--Inherent Jurisdiction--In order to
contextualize objection, so raised by petitioners, and response thereto by respondents,
we would first discuss inherent jurisdiction of High Court, as provided under Section
561-A, Cr.P.C. contours of jurisdiction of High Court were extensively
discussed by High Court in its decision rendered, wherein it was in essence
laid down that inherent jurisdiction of a High Court under Section 561-A,
Cr.P.C. spanned over judicial orders and not orders passed or steps taken
during an investigation of a case by police under Cr.P.C.--This extended scope
of inherent jurisdiction of High Court under Section 561-A, Cr.P.C., as
adjudged was endorsed by subsequent decisions--However, in pendulum of judicial
opinion of High Court swung back to its earlier position rendered--High Court, while discussing functions
and orders of ex-officio Justice of Peace under Section 22-A(6), Cr.P.C. were
opined not to be “judicial”, and thus could not be entertained by High Court
under its inherent jurisdiction under Section 561-A, Cr.P.C.--Moving on, one
must not lose sight of another fundamental settled principle that inherent
jurisdiction of High Court under Section 561-A, Cr.P.C. cannot be invoked as a
substitute to any other remedy provided under Cr.P.C.--Given judicial
precedents of our jurisdiction, discussed hereinabove, judicial consensus that
has evolved over time on undisputed features of inherent jurisdiction of High
Court under Section 561-A, Cr.P.C. is curative in nature and would only be
available, if no other remedy provided under Cr.P.C is attracted in a given
case--Held: It is by now settled
that inherent jurisdiction of High Court under Section 561-A could not be
invoked by an aggrieved party, if there was another remedy available under
Cr.P.C., including that of revision before High Court provided under Section 435
of Cr.P.C.
[Pp.
41, 44, 45, 46 & 47] B, C, D, E & F
PLD 1971 SC 677 and PLD
2016 SC 55
Criminal Procedure Code, 1898 (V of 1898)--
----S.
435--Revisional jurisdiction of High Court--A careful reading of Section 435,
Cr.P.C. reveals that High Court has authority, not only suo motu but
also on an application of an aggrieved party, to call for and examine record “of
any proceeding before any inferior criminal Court” and pass appropriate orders
in terms of powers vested under Section 439 Cr.P.C--Thus, in order to invoke revisional
jurisdiction of High Court under Section 435, Cr.P.C., two conditions precedent
constituting jurisdictional facts would require to be fulfilled: first, it
should relate to “proceedings”; and second, said “proceedings” should be before
an “inferior criminal Court”-- There can be no contest that, ATC is a “criminal
Court”, within contemplation of Section 6 of Cr.P.C--As far as ATC being “inferior”
to High Court, fact that competent High Court is appellate forum against orders
of ATC under Section 25 of Act, would surely render ATC “judicially inferior”
to competent High Court--More so, when in Act, legislature has not expressly
barred High Court from exercising its revisional jurisdiction, as has been
rendered in other special enactments--High Court has while considering vires of
challenged orders passed under special statutes before revisional jurisdiction
of High Court provided under Cr.P.C., kept in view two essential
considerations: firstly, express provision of providing in special statute,
remedy of appeal before High Court; and secondly, in some cases, also omission
in special statute to expressly bar revisional jurisdiction of High Court--Where
these two conditions are fulfilled, orders passed in exercise of revisional
jurisdiction of High Court under Section 435 read with Section 439 of Cr.P.C. have
been legally maintained--Reference in this regard can be made to some of leading
case decided by this Court while dealing with Drugs Act, 1976, Suppression of
Terrorist Activities (Special Courts) Act 1975, Offences in Respect of Banks
(Special Courts) Ordinance (IX of 1984), Pakistan Criminal Law Amendment Act,
1958 and even Act--Recently, a Full Bench of Lahore High Court in Muhammad
Jawad Hamid v. Mian Muhammad Nawaz Sharif (PLD 2018 Lahore 836) has aptly
explained scope of revisional jurisdiction of High Court in face of finality
attributed to impugned order passed by ATC--To consider fulfillment of other
jurisdictional condition; as to whether order of transfer dated 13.11.2018
passed by ATC can be termed as “any proceedings” envisaged in Section 435,
Cr.P.C. term “proceedings” has not been defined in Cr.P.C. or P.P.C. or even Act,
it would then be safe to apply its ordinary meaning--A similar exercise was
extensively carried out by this Court in State v. Naeemullah Khan (2001
SCMR 1461), wherein word “proceedings” having not been defined in Hazara Forest
Act, 1936 was considered in its ordinary dictionary meaning in light of judicial
opinion rendered by High Court and across border--High Court affirms opinion
regarding purport of term “proceeding” finally expressed in said decision--Even
when we view legislative history of Section 435, Cr.P.C. our above opinion is
further confirmed--It is noted that revisional jurisdiction of Sudder
Court/High Court extended only to “judicial proceedings” under Codes of 1861
and 1872--It was only in Criminal Procedure Code, 1882 that word “judicial” was
conspicuously omitted, and subject of revisional power of High Court was
expanded to “any proceedings”--Further, Cr.P.C. finally adopted terms of its
predecessor Code--legislative intention is, thus, marked and very obvious--Therefore,
in consequence thereof, term “any proceeding” in Section 435 Cr.P.C. has to be
offered a liberal interpretation, and would thus include any steps taken by Court
under law--To sum up our opinion on scope and extent of revisional jurisdiction
of High Court under enabling provisions of Cr.P.C., Court is reminded of views
of Cecil Walsh J., in his instructive book on “Revision and Extraordinary
Jurisdiction,” wherein, while commenting on criminal revisional jurisdiction of
High Court.
[Pp.
47, 48 & 49] G, H, I, J & K
PLD
2018 Lahore 836.
Criminal Procedure Code, 1898 (V
of 1898)--
----S. 190--This leads Court to crucial issue, as to what is
meant by words “cognizance of case” as employed in Section 23 of Act--As term “cognizance”
has not been defined in Act or Cr.P.C., and further that there being no
contextual vagueness or ambiguousness involved therein, it would then be safe
to apply its ordinary and natural meaning--As word themselves alone do in such
a case best declare intention of lawgiver--In doing so, one must be careful not
to seek reference from very limited or outdated sources, as it may not provide clear
meaning of word intended by legislature--In this regard, some of dictionary
meaning of word “cognizance” are stated herein below for review and
consideration--A full bench of Lahore High Court has after an extensive
deliberation on legal purport of term “cognizance” in criminal justice system,
and ratio consistently endorsed by judicial precedents in our jurisdiction
opined--Given above discussed, ordinary meaning of “cognizance of case” and judicial
opinion rendered thereon, it can plainly be stated that ATC would be said to
take “cognizance of case” when on receipt of challan along with material placed
therewith by prosecution, it takes judicial notice thereon by conscious
application of mind and takes positive steps to indicate that trial of case is
to follow--These steps need not necessarily be recorded as judicial orders--What
is essential is that orders so passed or steps taken reflect that ATC is to
proceed with trial. [Pp. 54, 55 & 56]
L, M & N
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 6--“Terrorism” under Act--Transfer of case--This brings
the Court to merits of very decision of ATC transferring case--To adjudge legal
correctness of said transfer order of ATC, it has to be seen, whether facts
alleged by complainant in FIR No. 20 constitute an offence of “terrorism”, as
envisaged under Section 6 of Act--As to what would constitute an offence
triable under Act was aptly dealt with by a larger bench of High Court--High
Court in Ghulam Hussain’s case (supra) has finally clarified two most
often misgivings about scope and extent of term “terrorism” under Act: firstly,
it was clarified that no matter how grave, shocking, brutal, gruesome or
horrifying offence, it would not fall within scope of terrorism, if it is not
committed with design or purpose specified or mentioned in clauses (b) or (c)
of sub-section (1) of Section 6 of said Act; and secondly, even if an offence
falls squarely within scope specified in sub-section (2) of Section 6, it would
not constitute offence of “terrorism”, if same was in furtherance of a private
dispute or vendetta--In regard to contention of counsel to delay decision of transfer
of case till evidence is recorded in case, we are not convinced to agree
therewith--Once that ATC had legally requisite material available to decide issue
of transfer of case, and that decision so taken was legally correct to hold
that it lacked jurisdiction to try case, it would against cardinal principle of
safe administration of criminal justice to then clog authority vested in ATC
under Section 23 to transfer case or for that matter direct it to proceed with trial. [Pp. 58, 59 & 60] O, P & Q
Sardar Muhammad Latif Khan Khosa, Senior Advocate
Supreme Court Assisted by: M. Naeem-ur-Rehman Bhutta, Advocate, Mr. Suzain
Khattak, Advocate, Syed Mehmood Gillani, Advocate, Mr. Ghulam
Murtaza, Advocate and Ch. Akhtar Ali, Advocate-on-Record for
Petitioners.
Mr. Faisal Siddiqui, Advocate Supreme Court Assisted by:
Ms. Sheza Ahmed, Advocate and Mr. Haider Imtiaz, Advocate for
Respondent No. 1.
Syed Iqbal Hussain Gillani, Advocate Supreme Court for
Respondents Nos. 2 and 3.
Dr. Faiz Shah, Prosecutor-General, Sindh, Mr. Zafar
Ahmed Khan, Additional Prosecutor-General, Sindh and Ms. Tanseer Yaqoob,
Additional Prosecutor-General, Sindh for State.
Dates of hearing: 19, 20 & 21.5.2020.
Judgment
Yahya Afridi, J.--Ali Gohar, Sikandar and Abdul Sattar,
the present petitioners have challenged the impugned judgment dated 21.02.2019
passed by the High Court of Sindh, ordering the trial arising out of Crime No.
20 of 2018 under Sections 302, 504, 109, 114, 148, 149 of Pakistan Penal Code,
1890 (“P.P.C.”) read with Sections 6 and 7 of the Anti-Terrorism Act, 1997
(“Act”) registered at Police Station ‘A’ Section, Mehar, District Dadu (“FIR
No. 20”) to be tried by the learned Anti-Terrorism Court and not the ordinary
criminal Court under the Criminal Procedure Code, 1898 (“Cr.P.C.”), and thereby
reversing the order dated 13.11.2018 passed by the learned Anti-Terrorism Court
(“ATC”) transferring the trial of the case to the regular criminal Court under
the enabling provisions of Cr.P.C.
Factual background
2. Before we consider and address the valuable contentions of
the learned counsel for the parties, it would be important to note the
essential yet relevant events leading to the instant petition. The said events
are rather chequered, and to contextualise the same, are narrated in
chronological order, as follows:-
|
Date |
Particulars of the Events |
|
18.01.2018 |
Pervaiz Ahmed son of Karam Ullah Chandio lodged a
report at Police Station ‘A’ Section, Mehar, District Dadu, stating that his
father Karam Ullah Chandio, his two brothers namely Mukhtar Ahmad and Kabir
Hussain had been murdered, alleging Ali Gohar, Ghulam Murtaza, Sikandar Khan
and Ghulam Qadir to be the assailants, whereas Buhran Khan was attributed the
role of final instigation to the assailants at the place of occurrence and
also the joint role of conspiracy to murder with Sardar Khan. The motive for
the crime was attributed to questioning the authority of the Sardar of the
Chandio tribe, namely Sardar Khan. On the same day, Mst. Dur Bibi lodged a crime
report No. 21 in Police Station ‘A’ Section, Mehar, District Dadu, reporting
the death of her husband namely Ghulam Qadir at the hands of Pervaiz Ahmed
and six others. |
|
29.06.2018 |
On a challenge made by Pervaiz Ahmed through Crl.
Misc. Application No. D-179 of 2018 before the High Court of Sindh, Sardar
Ahmed Khan Chandio and Burhan Chandio, who was released by the Investigating
Officer and their names were placed in column No. 2 of the Challan, were
directed to join the investigation, as accused. |
|
29.06.2018 |
Pervaiz Ahmed moved Criminal Miscellaneous
Application No. D-187 of 2018 challenging the interim pre-arrest bail granted
to Sardar Ahmed Khan Chandio and Burhan Chandio before the High Court of
Sindh. The learned High Court vide order dated 29.06.2018 recalled the bail order
granted to Burhan Chandio while maintaining the same granted to Sardar Ahmed
Khan Chandio. |
|
13.09.2018 |
Burhan Chandio and Sardar Ahmed Khan Chandio
challenged the decision of the High Court of Sindh in Criminal Misc.
Applications Nos. D-179 and D-187 of 2018 before this Court, which was
decided in the following terms: “After
hearing the learned counsel for the parties, a consensus has been arrived at
between the parties that the impugned orders of the learned High Court dated
29.06.2018 passed in Crl. Misc. Application No. D-187/2018 and order dated
27.06.2018 passed in Crl. Misc. Application No. D-179 of 2018 are set aside.
Similarly, both the Orders dated 24.02.2018 passed by the learned Judge,
Anti-Terrorism Court, Naushehro Feroze (one relating to report under Section
173, Cr.P.C. and the other relating to release of Burhan Chandio) are also
set aside. The matter shall be deemed to be pending before learned Judge,
ATC, to whom the case has been transferred who shall consider all matters
pending before it as raised by the learned counsel for the parties and the
State and decide the same without being influenced by any earlier observation
made by the learned Judge, ATC or by the learned High Court by way of the
impugned orders. 3. Both the above cases are disposed of in the
above terms.” |
|
17.09.2018 |
In compliance with the service effected upon the
accused in case FIR No. 20 of 2018, the learned ATC provided to the accused
all the documents, as per requirements of Section 265-C, Cr.P.C. |
|
27.10.2018 |
The ATC records to have taken the oath, as per
requirements under Section 16 of the Act. |
|
13.11.2018 |
The ATC after providing an opportunity of hearing
to all the parties, inter alia, decided that the offence reported in case FIR
No. 20 does not fall within the definition of “terrorism” under Section 6 of
the Act, and thereby, invoking its jurisdiction under Section 23 of the Act
ordered the transfer of the case to be tried by an ordinary criminal Court
under Cr.P.C., and not under the enabling provisions of the Act. |
|
21.02.2019 |
Pervaiz Akhtar complainant invoking the inherent
jurisdiction of the High Court under Section 561-A, Cr.P.C. challenged the
order dated 13.11.2018 passed by the ATC which was positively considered. The
High Court set aside the order of the ATC dated 13.11.2018 directing that
that trial in case FIR No. 20 of 2018 to be tried by the ATC and not the
ordinary criminal Court. What prevailed upon the High Court to decide so, was
explained in para-11 of its judgment in terms that: “11. In FIR of the present case, it is
clearly disclosed by the applicant that the private respondents and others
were having grudge against the deceased on account of formation of ‘Tamoondari
Council’ (Council of Elders) seemingly to give an end to hegemony of their
Sardar/Chief (Sardar Khan Chandio) and he in order to satisfy such grudge,
arranged for attack upon the complainant party whereby three innocent persons
lost their lives. The manner in which the private respondents and others have
acted prima facie was not to settle some score or personal enmity with the
complainant party but seems to leave a message to general public or to say
the Chandio Community thereby conveying them the lethal consequences, if
someone is found to be involved in formation of ‘Tamoondari Council’ (Council
of Elders) against their Sardar/Chief. Such object prima facie was/is
appearing from date, time and place of the incident, which the private
respondents and others have chosen for committing the alleged offence, which
obviously created a sense of insecurity and terror not only amongst the
inhabitant of the neighbourhood/ locality/ society, but amongst the entire
Chandio Community, therefore, the act on the part of private respondents and
others obviously was falling within the ambit of Section 6 of the
Anti-Terrorism Act, 1997.” |
|
At present |
The accused have not been Charged by the ATC in
case FIR No. 20 |
Legal
Submissions of learned counsel for the parties
3. The worthy counsel for the
petitioner very vehemently contended that the High Court lacked the inherent
jurisdiction provided to it under Section 561-A, Cr.P.C. to set aside the order
passed by the ATC before framing of charge by the said Court;[1]
that the High Court erred by not applying the correct principle in determining
whether the offence reported in case FIR No. 20 fell within the mischief of the
term “terrorism”, as contemplated under Section 6 of the Act and expounded in
the recent pronouncements of this Court;[2]
and that it was the guaranteed right of the petitioners as ordained under
Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”)
to be tried under the ordinary penal law than to face the harsh rigor provided
under the special law.[3]
The worthy Prosecutor General Sindh supported the above contentions of the
learned counsel for the present petitioners.
4. In rebuttal, the worthy counsel for
the respondent/ complainant in case FIR No. 20 very forcefully argued that the
High Court had inherent jurisdiction under Section 561-A, Cr.P.C. to entertain
any challenge made to an order made by a trial Court even before framing of
charge;[4]
that the offence reported in case FIR No. 20 fell within the mischief of the
term “terrorism”, as provided under the enabling provisions of the Act;[5]
that the admitted facts of the present case, undoubtedly brought the case
within the purview of “political” or/and “ideological” terrorism; that as the
trial Court had not taken “cognizance” of the case, it could not transfer the
case to an ordinary criminal Court within the contemplation of Section 23 of
the Act; and that when faced with two versions relating to its jurisdiction,
Courts ought to delay the decision thereon till sufficient evidence is produced
by the parties to render a decision;[6]
and finally that the respondent/ complainant in case FIR No. 20 would be
prejudiced, if at this early stage, a decision is rendered on the jurisdiction
of ATC and transferring the case to an ordinary criminal Court, and later the
ordinary criminal Court would be unable to transfer the case back to ATC, in
case definite and clear evidence is brought on the record to bring the case
within the purview of “terrorism” as provided in the Act.
Objection to the inherent
jurisdiction of High Court
5. We shall commence with addressing the jurisdictional
challenge made by the learned counsel for the present petitioners to the High
Court exercising its inherent powers under Section 561-A, Cr.P.C. in setting
aside the order passed by the ATC in transferring the case to an ordinary
criminal Court under Section 23 of the Act.
6. Let us consider the various legal remedies available to the
present respondent/ complainants of FIR No. 20, or for that matter, an
aggrieved party to any order of ATC to challenge the transfer order passed by
the ATC: to begin with, the aggrieved party is to consider the available
remedies provided in the Act; and if none is provided, may seek the same under
the Cr.P.C.; and still failing to find any remedy, may finally approach the
constitutional jurisdiction of the High Court under Article 199 of the
Constitution.
7.
Now, to the facts of the present case, Section 25 of the Act provides the
remedy of an Appeal only against a “final” judgment of the ATC resulting in
conviction or acquittal of the accused. An order passed under Section 23 of the
Act, not being “final” in view of the express provision of Section 25, could
not be assailed by the aggrieved party in the appellate remedy provided under
the Act. This would then lead the aggrieved party to seek its remedy under the
revisional or inherent jurisdiction of the High Court provided under Cr.P.C, if
available. To examine such prospects for the aggrieved party, we must review
the relevant provisions empowering the High Court to exercise its revisional
and inherent jurisdiction under Cr.P.C. The same read as follows:
“435.
Power to call for records of inferior Courts.--(1)The High Court or any
Sessions Judge or District Magistrate, or any Sub-divisional Magistrate
empowered by the [Provincial Government] in this behalf, may call for and
examine the record of any proceeding before any inferior Criminal Court situate
within the local limits of its or his jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or propriety of
any finding, sentence or order recorded or passed, and as to the regularity of
any proceedings of such inferior Court [and may, when calling for such record,
direct that the execution of any sentence be suspended and, if the accused is
in confinement, that he be released on bail or on his own bond pending the
examination of the record.
[Explanation:
All Magistrates, shall be deemed to be inferior to the Sessions Judge for the
purposes of this sub-section.]
439. High Court’s
powers of revision.--(1) In the case of any proceeding the record of which
has been called for by itself 6[xxx] or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court
by Section 338, and may enhance the sentence and, when the Judges composing the
Court of Revision are equally divided in opinion, the case shall be disposed of
in manner provided by Section 429.
(2) No order under
this section shall be made to the prejudice of the accused unless he has had an
opportunity of being heard either personally or by pleader in his own defence.
(3) Whether the
sentence dealt with under this section has been passed by a Magistrate 7[***]
the Court shall not inflict a greater punishment for the offence which, in the
opinion of such Court, the accused has committed, than might have been
inflicted for such offence by a Magistrate of the first class.
[(4) Nothing in this
section shall be deemed to authorize a High Court--
(a) to convert a
finding of acquittal into one of conviction; or
(b) to entertain any
proceedings in revision with respect to an order by the Sessions Judge under Section
439-A.]
(5) Where under this
Code an appeal lies and no appeal is brought, no proceedings by way of revision
shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding
anything contained in this section, any convicted person to whom an opportunity
has been given under sub-section (2) of showing cause why his sentence should
not be enhanced shall, in showing cause, be entitled also to show-cause against
his conviction”.
“561-A. Saving of
inherent power of High Court. Nothing in this Code shall be deemed to limit
or affect the inherent power of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the ends of justice.”
Inherent Jurisdiction
8.
In order to contextualize the objection, so raised by the petitioners, and the
response thereto by the respondents, we would first discuss the inherent
jurisdiction of the High Court, as provided under Section 561-A, Cr.P.C. The
contours of this jurisdiction of the High Court were extensively discussed by
this Court in its decision rendered in Shahnaz Begum v. The Hon’ble Judges
of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677)
wherein it was in essence laid down that inherent jurisdiction of a High Court
under Section 561-A, Cr.P.C. spanned over the judicial orders and not orders
passed or steps taken during an investigation of a case by the police under the
Cr.P.C. It was explained in terms that:
“If an investigation
is launched mala fide or is clearly beyond the jurisdiction of the
investigating agencies concerned then it may be possible for the action of the
investigating agencies to be corrected by a proper proceeding either under
Article 98 of the Constitution of 1962 or under the provisions of Section 491
of the Criminal Procedure Code, if the applicant is in the latter case in
detention, but not by invoking the inherent power under Section 561-A of the
Criminal Procedure Code. ... ... ...
It
will be observed that the power given thereby can be invoked to give effect to
any order under the Code to prevent an abuse of the process of any Court or
otherwise to secure the ends of justice. The ends of justice necessarily means
justice as administered by the Courts and not justice in the abstract sense or
justice administered by agencies other than Courts. The words “otherwise to
secure the ends of justice”, have to be read along with the earlier objects
mentioned in this section and must have some co-relation with them and it is in
this sense that this Court in the case of M.S. Khawaja v. The State (PLD 1965
SC 287) opined that the ends of justice to secure which the inherent power may
be invoked “have reference to the purposes which the judicial process is
intended to secure, and it is difficult to include actions or investigating
agencies within the scope of judicial process”.”
9. On the other hand, in Bahadur
and another v. The State and another (PLD 1985 SC 62) this Court drew a
distinction between administrative and judicial functions of the magistrate
under Cr.P.C., and came to the conclusion that, while passing an order of
cancellation of a criminal case, the magistrate exercises administrative
powers, thus not functioning as a Court. Therefore, such an order was not
amenable to revisional jurisdiction. The opinion of the Court was expressed in
terms that:
“Criminal Procedure Code contains no
definition of Court nor does the Penal Code. In Section 20 of Penal Code “Court
of Justice” is defined as “a Judge who is empowered by law to act judicially
alone, or a body of Judges which is empowered by law to act judicially as a
body, when such Judge or body of Judges is acting judicially”. This definition
is of avail for the purposes of Criminal Procedure Code as sub-section (2) of Section
4 thereof provides “all words and expressions used herein and defined in the
Pakistan Penal Code, and not hereinbefore defined shall be deemed to have the
meanings respectively attributed to them by that Code”. The High Court has
taken the view, and we think rightly so, that under the Criminal Procedure Code
a Magistrate is entrusted with diverse duties and in discharging the same does
not always function as a Court, conduct judicial proceedings or is amenable to
the revisional jurisdiction. Some of his powers and duties under the Code are
administrative, executive or ministerial and he discharges these duties not as
a Court but as a persona designate. Mere name or designation of a Magistrate
not decisive of the question because as observed, “Judges often administer and
administrators often Judge”. ... ... ...
A Magistrate, even while concurring in
cancellation of a case is required to judicially examine the report admitted
under Section 173, Cr.P.C., AIR 1968 SC 117 and this have led to the impression
that he must while doing so be acting and functioning as a Court 1972 Cr.LJ 1446,
1971 Cr.LJ 194 and AIR 1969 A.P. 281, etc. This obviously is a mistaken
impression and the mistake will transparently surface from what has been
observed by Robson and what was held in the case of Royal Aquarium. ... ... ...
Though a Magistrate in cancelling a registered criminal case is required to act
judicially in that he has to act fairly, justly and honestly, a duty common to
the exercise of all state power, there is no lis before him, there is no duty
to hear the parties, there is no decision given, no finality or irrevocability
attaching to the order. The party is left free to institute a complaint on the
same facts, and the same Magistrate does not even after passing such an order
render himself functus officio. On the contrary he is quite competent to
entertain and deal with such a complaint on material presented to him. These
peculiarities establish beyond any doubt that in so concurring with a report
submitted under Section 173, Cr.P.C. he does not function as a criminal Court.
For that reason his order is not amenable to revisional jurisdiction under Sections
435 to 439, Cr.P.C.”
10. With time, the judicial opinion expressed by this Court in Shahnaz
Begum’s case and Buhadur’s case (supra) was swayed to swell the scope of
the inherent jurisdiction of the High Court under Section 561-A, Cr.P.C. It was
in Arif Ali Khan’s case (supra), that this Court, expanded the inherent
jurisdiction of the High Court under Section 561-A, Cr.P.C. by creating an
exception to the ratio of Bahadur’s case (supra) to cases where the
facts of the case revealed a mala fide on the part of police.[7]
It was opined that:
“It is true that in
the above cited case this Court clearly laid down that a Magistrate while
cancelling a registered criminal case, acting on the report of police submitted
to him under Section 173, Cr.P.C., through required to act judicially but his
orders so passed are not amendable to revisional jurisdiction under Sections 435
to 439, Cr.P.C. But this does not mean that where the Court reaches a positive
conclusion in a case that a particular order passed by the subordinate criminal
Court amounted to an abuse of the process of Court, it would be powerless to
rectify the injustice. In the case before us, firstly, the application filed by
Respondent No. 2 before the High Court was not under Sections 435 to 439,
Cr.P.C. but it was a petition under Section 561-A, Cr.P.C. Secondly, on the
facts of the case the learned Judge in Chamber reached the conclusion that
exclusion of the names of petitioners from the first challan submitted to the
Court was a mala fide act on the part of police and the manner in which
the orders were obtained from the Magistrate by the police for discharge of
petitioners from the case clearly amounted to an abuse of the process of the
Court. On these considerations, the learned Judge in Chamber in our view is
fully justified in setting aside the order of Magistrate under Section 561-A,
Cr.P.C. and direct him to dispose of the case in accordance with the law. No
interference is called for with the order of High Court.”
11.
This extended scope of the inherent jurisdiction of the High Court under Section
561-A, Cr.P.C., as adjudged in Arif Ali Khan’s case (supra), was
endorsed by subsequent decisions.[8]
However, in Muhammad Ali’s case (supra), the pendulum of the judicial
opinion of this Court swung back to its earlier position rendered in Shahnaz
Begum’s case and Bahadur’s case (supra). This Court, while discussing the
functions and orders of ex-officio Justice of the Peace under Section 22-A(6),
Cr.P.C. were opined not to be “judicial”, and thus could not be entertained by
the High Court under its inherent jurisdiction under Section 561-A, Cr.P.C.[9]
It was opined that:
“4. In view of the
legal position discussed above we have entertained no manner of doubt that the
order passed by the ex-officio Justice of the Peace under Section 22-A(6),
Cr.P.C. and impugned by the petitioner before the Lahore High Court, Lahore was
an executive/ administrative order and that the petitioner’s petition filed under
Section 561-A, Cr.P.C. before the Lahore High Court, Lahore assailing the said
order passed by the ex-officio Justice of the Peace was not competent or
maintainable. Apart from that while seized of a petition filed under Section 561-A,
Cr.P.C. the Lahore High Court, Lahore had no jurisdiction to interfere in the
investigation of a criminal case, as held in the precedent cases mentioned
above. It has not been denied before us that during the pendency or hearing of
that petition the petitioner had never applied before the Lahore High Court,
Lahore or had requested the learned Judge-in-Chamber of that Court seeking
conversion of the petitioner’s petition filed under Section 561-A, Cr.P.C. into
a writ petition under Article 199 of the Constitution or its treatment as a
writ petition without a formal conversion and, thus, the defect in competence
and maintainability of the petitioner’s petition filed under Section 561- A,
Cr.P.C. remained uncured and fatal to the petition.”
12.
Moving on, one must not lose sight of another fundamental settled principle
that the inherent jurisdiction of the High Court under Section 561-A, Cr.P.C.
cannot be invoked as a substitute to any other remedy provided under the
Cr.P.C. This principle has been reiterated recently by this Court in case of
Muhammad Farooq v. Ahmed Nawaz Jagirani and others (PLD 2016 SC 55) in terms
that:--
“10. …….. The orders
passed either under Section 203, Cr.P.C. whereby the direct complaint is
dismissed or under Section 204, Cr.P.C. whereby the Court has taken cognizance
of an offence complained of and has issued warrants or summons for causing the
accused to be brought or produced before the Court are judicial orders. Where
taking cognizance of the offence after hearing the accused persons and the Prosecutor,
the Court considers that the charge is groundless or that there is no
probability of the accused being convicted of any charge, it may record
acquittal under Section 249-A, Cr.P.C and or Section 265-K, Cr.P.C as the case
may be. The Sessions Judge and or the High Court under Sections 435 and 439,
Cr.P.C may exercise Revisional power to examine the legality or propriety of
any order passed and or examine the regularity of any proceedings of the Court
subordinate to it. Exercise of jurisdiction under Section 561-A, Cr.P.C by the
High Court is akin to the exercise of jurisdiction under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973; exercise of such
jurisdiction is not to be exercised in routine and or as a matter of course
merely because such jurisdiction is available and or could be exercised.
Exercise of inherent jurisdiction is dependent on non availability of alternate
and efficacious remedy and or existence of some extraordinary circumstances
warranting exercise of such jurisdiction by-passing such alternate remedy by
the High Court. Another rule of propriety, that has evolved by precedent law
must not lose sight is that wherdfe two Courts have co-extensive or concurrent
jurisdiction, then the propriety demands that jurisdiction of Court of the
lower grade is to be invoked in the first instance……..
11. The remedy under
Section 561-A, Cr.P.C. is not an alternate and or substitute for an express
remedy as provided under the law in terms of Sections 435 to 439, Cr.P.C. and
or Sections 249-A or 265-K, Cr.P.C., as the case may be. One cannot be allowed
to bypass and or circumvent the ordinary remedy in normal course of the event”.
13. Before we move on, it would be fair to first comment on the
cases cited by the learned counsel for the parties and discussed hereinabove.
Apart from the decisions in Mohammad Ali’s case and Muhammad Farooq’s
case (supra), all the other decisions cited above related to the powers and
functions of the Investigation Officer or the Magistrate in the pre-trial
stage, and that too before the challan were assigned for trial by the referring
magistrate under Section 190, Cr.P.C. It may be noted that Section 6 of Cr.P.C
recognises magistrate as a class of “Courts”. However, scanning the Cr.P.C.,
one notes that a magistrate (as a Court) may pass a number of orders under
Chapter VI, even at the investigation stage, which are purely administrative
orders. The question; whether it is correct to draw a distinction between
administrative and judicial orders for the purpose of inherent or revisional
jurisdiction, is surely a question beyond the scope of the controversy of the
present case, we would, therefore, leave it to be examined at some other
appropriate case. As for Mohammad Ali’s case (supra), it is noted that
this case also is not very relevant, as it deals with the proceedings before a “Justice
of Peace” and not a “Court”, as recognised within the purview of Section 6,
Cr.P.C. While Muhammad Javed’s case (supra) though reiterating a general
principle regarding the lack of inherent jurisdiction of the High Court in the
face of a remedy already available under Cr.P.C., relates to orders passed
during the complaint proceedings provided under Section 200, Cr.P.C. Thus, the
judgments, though very valuable in their deliberations and enunciation of the
principles discussed therein, but surely distinguishable to the facts and
circumstances of the present case.
14.
Given the judicial precedents of our jurisdiction, discussed hereinabove, the
judicial consensus that has evolved over time on the undisputed features of the
inherent jurisdiction of the High Court under Section 561-A, Cr.P.C. is
curative in nature and would only be available, if no other remedy provided
under Cr.P.C is attracted in a given case.
15. In the present case, the dispute essentially revolves
around the type of jurisdiction of the High Court that would be available
against the order of transfer of the case passed by ATC under Section 23 of the
Act at a pre-trial stage but after the submission of Challan, summoning of all
the accused and delivering them copies of documents prior to the framing of
charge.
16. As discussed above, Section 25 of the Act, provides for an
appeal against the “final” judgment of the ATC resulting in conviction or
acquittal, and not one against an order of transfer of case passed under Section
23 of the Act. Hence, the remedy of appeal provided under the Act was not
available to the present respondents. Accordingly, they were to then seek their
remedy elsewhere, either under the provisions of Cr.P.C. or the Constitution of
Islamic Republic of Pakistan, 1973 (“Constitution”).
17.
As discussed above, it is by now settled that the inherent jurisdiction of the
High Court under Section 561-A could not be invoked by an aggrieved party, if
there was another remedy available under Cr.P.C., including that of revision
before the High Court provided under Section 435 of Cr.P.C.
Revisional Jurisdiction
18.
A careful reading of Section 435, Cr.P.C. reveals that the High Court has
authority, not only suo motu but also on an application of an aggrieved
party, to call for and examine the record “of any proceeding before any inferior
criminal Court” and pass appropriate orders in terms of powers vested under
Section 439, Cr.P.C. Thus, in order to invoke the revisional jurisdiction of
the High Court under Section 435, Cr.P.C., two conditions precedent
constituting jurisdictional facts would require to be fulfilled: first, it
should relate to “proceedings”; and second, the said “proceedings” should be before
an “inferior criminal Court”.
Inferior Criminal Court
19.
There can be no contest that, ATC is a “criminal Court”, within the
contemplation of Section 6 of the Cr.P.C. As far as ATC being “inferior” to
High Court, the fact that the competent High Court is the appellate forum
against the orders of ATC under Section 25 of the Act, would surely render the
ATC “judicially inferior”[10]
to the competent High Court. More so, when in the Act, the legislature has not
expressly barred the High Court from exercising its revisional jurisdiction, as
has been rendered in other special enactments.[11]
This Court has while considering the vires of challenged orders passed under
special statutes before the revisional jurisdiction of the High Court provided
under Cr.P.C., kept in view two essential considerations: firstly, the express
provision of providing in the special statute, remedy of appeal before the High
Court; and secondly, in some cases, also the omission in the special statute to
expressly bar the revisional jurisdiction of the High Court. Where these two
conditions are fulfilled, the orders passed in exercise of revisional
jurisdiction of the High Court under Section 435 read with Section 439 of
Cr.P.C. have been legally maintained. Reference in this regard can be made to
some of the leading case decided by this Court while dealing with The Drugs
Act, 1976,[12]
Suppression of Terrorist Activities (Special Courts) Act, 1975,[13]
Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984),[14]
Pakistan Criminal Law Amendment Act, 1958[15]
and even the Act.[16]
Recently, a Full Bench of Lahore High Court in Muhammad Jawad Hamid v. Mian
Muhammad Nawaz Sharif (PLD 2018 Lahore 836) has aptly explained the scope
of revisional jurisdiction of the High Court in the face of the finality[17]
attributed to the impugned order passed by the ATC, and declared that:
“8.
For what has been discussed above, we hold that ATC is subordinate/inferior
Court to the High Court; in ATA no restriction has been imposed for filing of
revision petition, hence, the High Court has the visitorial power over ATC,
therefore, can entertain petitions in the nature of those covered by Sections
435, 439 of the Code, except to grant bail or release an accused in a case
triable by ATC, in the light of restriction imposed under Section 21(d) of the
ATA, and writ petition is not maintainable.”
Proceedings
20.
This would then lead us to consider the fulfillment of the other jurisdictional
condition; as to whether the order of transfer dated 13.11.2018 passed by ATC
can be termed as “any proceedings” envisaged in Section 435, Cr.P.C. The term “proceedings”
has not been defined in the Cr.P.C. or P.P.C. or even the Act, it would then be
safe to apply its ordinary meaning. A similar exercise was extensively carried
out by this Court in The State v. Naeemullah Khan (2001 SCMR 1461),
wherein the word “proceedings” having not been defined in Hazara Forest Act,
1936 was considered in its ordinary dictionary meaning in the light of the
judicial opinion rendered by this Court and across the border. This Court
affirms the opinion regarding the purport of the term “proceeding” finally
expressed in the said decision, when it concluded that:
“Keeping
in view the literary meaning and the, interpretation of the word ‘proceeding’
as interpreted in various pronouncements given above, we are of the opinion
that the word ‘proceedings’ is a comprehensive expression which includes every
step taken towards further progress of a cause in Court or Tribunal, from its
commencement till its disposal. In legal terminology the word “proceedings”
means the instituting or carrying on of an action of law. Generally, a ‘proceeding’
is the form and manner of conducting judicial business before a Court or
judicial officer, including all possible steps in an action from its
commencement to the execution of a judgment and in a more particular sense it
is any application to a Court of justice for aid in enforcement of rights, for
relief, for redress of injuries, or damages or for any remedial object. It
in its general use comprehends every step taken or measure adopted in
prosecution or defence of an action.”
(emphasis provided)
21.
Even when we view the legislative history of Section 435, Cr.P.C. our above
opinion is further confirmed. It is noted that the revisional jurisdiction of
the Sudder Court/High Court extended only to the “judicial proceedings” under
the Codes of 1861 and 1872. It was only in the Criminal Procedure Code, 1882
that the word “judicial” was conspicuously omitted, and the subject of revisional
power of the High Court was expanded to “any proceedings”. Further, Cr.P.C.
finally adopted the terms of its predecessor Code. The legislative intention
is, thus, marked and very obvious. Therefore, in consequence thereof, the term “any
proceeding” in Section 435, Cr.P.C. has to be offered a liberal interpretation,
and would thus include any steps taken by the Court under the law.
22.
To sum up our opinion on the scope and extent of the revisional jurisdiction of
the High Court under the enabling provisions of Cr.P.C., we are reminded of the
views of Cecil Walsh J., in his instructive book on “Revision and Extraordinary
Jurisdiction,”[18]
wherein, while commenting on criminal revisional jurisdiction of the High
Court, concluded in terms that:
“The original object
of this legislation appears to have been to confer upon superior criminal
Courts, in all cases where no appeal was provided, a kind of paternal or
supervisory jurisdiction, without the intervention necessarily of any
interested party, in Order to correct any miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of proper precautions,
or apparent harshness of treatment, which has resulted on the one hand in some
injury to the due maintenance of law and order, or on the other hand in some
undeserved hardship to individuals ... The High Courts’ powers of revision are
specifically prescribed in Subsection (1) (of Section 439). They are in
substance such as may be exercised by a Court of appeal, and they leave little
difference discernible between what the Court may do when sitting in appeal,
and what it may Order when sitting in revision. In practice substantial
differences exist.”
23. Therefore, some of the essential yet determinative factor
for the exercise of revisional jurisdiction of High Court against an order of
ATC would be: whether it has been passed by ATC in “any proceedings” before it;
and whether no appeal has been provided for the same under the Act; and whether
the revisional jurisdiction has expressly not been barred for that matter under
the Act.
24. In view of the above deliberations, it would be safe to
state that ATC being a judicially “inferior criminal Court” to the High Court
and that the order of transfer of the case dated 13-11-2018 was passed during
the “proceedings” of the case before the ATC. Accordingly, the two condition
precedents for invoking the revisional jurisdiction of the High Court under Section
435 was satisfied, and thus the grievance of the present respondent/complainant
in FIR No. 20 was maintainable under the revisional jurisdiction of the High
Court under Section 435, Cr.P.C. This being so, the challenge of the present
respondent/complainant in FIR No. 20 made to the order of the ATC transferring
the case to an ordinary criminal Court of competent jurisdiction was not
maintainable before the High Court under its inherent jurisdiction of Section 561-A,
Cr.P.C., or its constitutional jurisdiction under Article 199 of the
Constitution, as they had an alternative remedy available before the criminal
revisional jurisdiction under Section 435, Cr.P.C. It is also an admitted
position that neither the learned High Court on its own motion nor the present
respondent/complainant in FIR 20 made any request to convert their petition filed
under Section 561-A, Cr.P.C. into one under Section 435, Cr.P.C. Accordingly,
the impugned decision before us can, now, only be adjudged as one rendered by
the High Court, while exercising its inherent jurisdiction under Section 561-A,
Cr.P.C., and not otherwise.
Order of transfer of case
premature
25. Let us move on to the jurisdictional challenge made by the
worthy counsel for the respondent/ complainant in FIR No. 20 to the exercise of
authority by the learned ATC to consider and transfer the case to an ordinary
criminal Court under Section 23 of the Act. It was urged that exercise of
authority by the ATC to transfer the case was premature, as the expressed
condition precedent provided under Section 23 of taking “cognizance” of an
offence by the ATC had not taken place, and thus, the very order of transfer by
the ATC was void ab initio.
26. To appreciate this jurisdictional challenge, it would be
appropriate to understand that the Act is a special enactment, aimed to “provide
for the prevention of terrorism, sectarian violence and for speedy trial of
heinous offences; Whereas it is expedient to provide for the prevention of
terrorism, sectarian violence and for speedy trial of heinous offences and for
matters connected therewith and incidental thereto”.[19]
And to this end, the legislature has, inter alia, provided a special procedure
for registration, investigation and trial for commission of the offences
triable thereunder. The matter in hand relates to the authority vested in the
ATC to transfer a case under Section 23 of the Act. In this regard, to fully
recognise the extent of the authority of ATC to transfer the case, we are to
essentially review provisions for establishment, procedure of proceedings and
power to transfer a case by ATC, provided in sub-section (2) of Section 13, sub-section
(3) of Section 19 and Section 23 of the Act, respectively, which read as under:
Section 13
Establishment of
Anti-terrorism Court.--(1) For the purpose of providing for the speedy
trial of the cases [under this Act] and of scheduled offences, the Federal
Government, or if so directed by the Government, the Provincial Government may
establish by notification one or more Anti-terrorism Courts in relation to
[each territorial area as specified by the High Court concerned].
(2) Where more
Anti-terrorism Courts than one have been established in any area, the
Government in consultation with the Chief Justice of the High Court shall
[designate a judge of any such Court to be an administrative judge] and all
cases trial under this Act pertaining to the said area shall be filed before
the [said Court and such judge may either try the case himself] or, assign any
case, or cases, for trial to any other Anti-terrorism Court at any time
prior to the framing of the charge. The cases shall be assigned to a Court
one case at a time:
Provided
that in order to ensure that the time of the Court is not wasted if for some
reason a given case cannot proceed more than one case can be assigned to it at
any time or from time to time.
Section 19(3)
The [Anti-terrorism Court] may directly take
cognizance of case triable by such Court without the case being sent to it
under Section 190 of the Code.
Section 23
Power to transfer cases to regular Courts.
Where, after taking cognizance of an offence, [an Anti-terrorism Court] is
of opinion that the offence is not a scheduled offence, it shall,
notwithstanding that it has no jurisdiction to try such offence, transfer the
case for trial of such offence to any Court having jurisdiction under the Code,
and the Court to which the case is transferred may proceed with the trial of
the offence as if it had taken cognizance of the offence.
(emphasis
provided)
27. A brief resume of the special
procedure provided in the Act, commencing from the stage the challan is submitted
till the framing of the charge, would highlight the extent of jurisdictional
facts or the condition precedent for ATC to transfer the case under Section 23
of the Act. The same is as follows:
Stage I
Submission of the Challan.
On completion of the investigation,
the challan of the case, under sub-section (2) of Section 13 of the Act, is put
in the Court of the Administrative Judge of the ATC, and further that under sub-section
(3) of Section 19 of the Act, the same is not sent by a Magistrate under Section
190 of Cr.P.C.
Stage II
Decision of assignment or trial by Administrative Judge.
Administrative Judge of the ATC, who on receipt of the challan
may proceed with the trial himself or assign the same for a trial to any other
ATC. However, the said assignment has to be made before framing of charge by
the said Administrative Judge, as provided under sub-section (2) of Section 13
of the Act. However, this restriction of the time period in the initial
assignment of cases to ATC would not limit the authority expressly vest in the
Administrative Judge to transfer the trial from one ATC already assigned the
case to another under sub-section (4) of Section 13 of the Act.
Stage III
Authority of transfer by Administrative Judge.
In cases, where the Administrative
Judge of the ATC decides to proceeds with trial himself, and not assign the
same to the other ATC, then the Administrative Judge proceeds with the case in
the same manner as any other judge appointed as an ATC under sub-section (1) of
Section 13 of the Act.
Step I
Proceedings before ATC
I. Under
Section 16 of the Act, the Judge ATC at the commencement of the proceedings of
the case is to make an oath to the effect that he shall decide the case
honestly, faithfully and considering himself accountable to Almighty Allah.
Step II
Cognizance of the case by ATC
I). In
cases where ATC, on receipt and consideration of the challan and the material
placed therewith, forms an opinion that the offences mentioned therein do not
come within the scope of offences triable under the Act, transfers the case
under Section 23 to an ordinary criminal Court to proceed with the trial under
Cr.P.C. The judicial precedents endorse the view that challan and the material
placed therewith by the prosecution would suffice for the ATC to decide whether
to proceed with the case or to transfer the same under Section 23 of the Act.[20]
II). The conjunctive reading of Section 23 with sub-section (2) of Section
13 of the Act, reveals that the only restriction on the authority of the
Administrative Judge to transfer the case to an ordinary criminal Court is that
it must have taken cognizance of the case.
III). There is no
express time limit for the exercise of this authority of ATC after it has taken
cognizance of the case. Hence, it can safely be stated that ATC may after
taking cognizance, transfer the case to an ordinary criminal Court and this
authority to transfer can be exercised during the entire proceeding of the
trial.
IV). What is also to be noted is that the express limitation of time
(till framing of the charge) provided under sub-section (2) of Section 13
relates only to the initial assignment of the case by the Administrative Judge
to another ATC and not the authority of transfer of the case to an ordinary
criminal Court under Section 23 of the Act.
Stage IV
Authority of transfer by ATC.
I. In
cases, where the Administrative Judge has assigned the case for trial to ATC,
the assignee judge of the ATC, like the Administrative judge, subject to the
express limitations provided under the Act, is empowered to take all the steps
and pass all order stated hereinabove in Stage III.
“Cognizance
of the case”
28.
This leads us to the crucial issue, as to what is meant by the words “cognizance
of the case” as employed in Section 23 of the Act. As the term “cognizance” has
not been defined in the Act or Cr.P.C., and further that there being no
contextual vagueness or ambiguousness involved therein, it would then be safe
to apply its ordinary and natural meaning. As the word themselves alone do in
such a case best declare the intention of the lawgiver.[21]
In doing so, one must be careful not to seek reference from very limited or
outdated sources, as it may not provide the clear meaning of the word intended
by the legislature. In this regard, some of the dictionary meaning of the word “cognizance”
are stated herein below for review and consideration:
LexisNexis, Australian Legal Dictionary,
2nd Edition:
1. Hearing and determining a cause of
action or a matter. 2. The right of a Court, tribunal or other body to deal
with a matter legally. 3. Judicial notice is taken of a fact by a Court. 4.
Admission or acknowledgement of a fact alleged.
Black’s Law Dictionary, 8th Edition
1. A Court’s right and
power to try and to determine cases; Jurisdiction. 2. The taking of judicial or
authoritative notice. 3. Acknowledgment or admission of an alleged fact; esp.
(hist) acknowledgment of a fine. 4. Common law pleading.
Osborn’s Concise Law Dictionary, 7th Edition
Judicial notice or knowledge; jurisdiction.
Chambers English Dictionary
Knowledge or notice,
judicial or private: observation: Jurisdiction: that by which one is known, a
badge.
The Oxford Universal Dictionary Illustrated
Knowledge or notice,
judicial or private: observation: Jurisdiction: that by which one is known, a
badge.
Mitra’s Legal and Commercial Dictionary
1. Knowledge as
attained by the observation or information; perception, notice, observation.
2. (a) The
hearing and trying of a cause.
(b) The right of
dealing with any matter judicially; jurisdiction.
3. Acknowledgement;
admission of a fact alleged; esp. acknowledgement of a fine. b. A plea in
replevin that defendant holds the goods in the right of another bailiff.
4. A device by which
a person, company, etc., is distinguished, as a crest, etc.; a badge; a device
borne for distinction by all the retainers of a noble house.
29.
A full bench of the Lahore High Court in Wazir v. The State (PLD 1962
(W.P.) Lahore 405) has after an extensive deliberation on the legal purport of
the term “cognizance” in the criminal justice system, and the ratio
consistently endorsed by the judicial precedents in our jurisdiction opined
that:
“ ……. In other words,
the police report by itself, when received by the Magistrate, does not
constitute the taking of cognizance, and it is reasonable to expect that
something more will be done to show that the Magistrate intends to start the
proceeding….. He may keep the case waiting until the sanction arrives and then
pass some order to show that he intends to hold a trial.”
30. The ratio of Wazir’s case (supra) has been
consistently followed by the precedents that followed. One of the defining
decisions in this regard is Alam Din v. The State (PLD 1973 Lahore 304),
wherein it was the earlier opinion of the full bench was reconfirmed and
refined in terms that:
“A Court takes
cognizance by a judicial action which need not necessarily involve any formal
act, but occurs as soon as the Court applies its mind to the suspected
commission of the offence, as disclosed in the police report or the private
complaint, for the purpose of proceeding in a particular way in accordance with
the provisions contained in the Code for holding an enquiry or a trial, as the
case may be.”
31. And finally, this Court also in Haq Nawaz and others v.
The State (2000 SCMR 785) discussed the purport of the term “cognizance of
a case”, and held that:
From a review of
the above provisions of the Code, it is quite clear to us that taking of
cognizance of a case by a Court is not synonymous with the commencement of the
trial in a case. Taking of cognizance of a case by the Court is the first step,
which may or may not culminate into the trial of the accused. The trial in a
criminal case, therefore, does not commence with the taking of the cognizance
of the case by the Court. A careful examination of the above provisions in
the Code makes it clear that until charge is framed and copies of the material
(Statement of witnesses recorded under Sections 161 and 164, Cr.P.C.,
inspection note of the first visit to the place of occurrence and recoveries
recorded by Investigating Officer, if the case is initiated’ on, police report,
and copies of complaint, other documents filed with complaint and statements
recorded under Section 200 or 202 (if it is a case upon complaint in writing)
are supplied to accused free of charge and he is called upon to answer the
charge. In the case before us, the challan was filed before the Court on
5-1-1991 and the accused were also summoned to appear before the Court on
6-1-1991, which may amount to taking of the cognizance of the case by the
Court. However, in view of the provisions of the Code referred to above,
these steps could not amount to commencement of the trial of the appellant.
(emphasis provided)
32.
Given the above discussed, ordinary meaning of “cognizance of the case” and the
judicial opinion rendered thereon, it can plainly be stated that ATC would be
said to take “cognizance of the case” when on the receipt of the challan along
with the material placed therewith by the prosecution, it takes judicial notice
thereon by the conscious application of mind and takes positive steps to
indicate that the trial of the case is to follow. These steps need not
necessarily be recorded as judicial orders. What is essential is that the
orders so passed or steps taken reflect that ATC is to proceed with the trial.
33. To sum up the above discussion on the authority vested in
the ATC to transfer a case, as envisaged under Section 23 of the Act, we may
note that:
I) Both, the
Administrative Judge and any other ATC to whom the case is assigned by the
Administrative Judge, after taking “cognizance of the case”, have the authority
to transfer the case under Section 23 to an ordinary criminal Court for trial
under Cr.P.C.
II) The authority of
ATC to transfer the case under Section 23 to an ordinary criminal Court for
trial under Cr.P.C. can take place after taking cognisance of the case, and
this authority to transfer remains with the ATC during the proceedings of the
trial till the judgment is announced.
III) The condition
precedent for ATC to exercise the authority to transfer the case under Section
23 of the Act are: firstly when the ATC takes cognizance of the case; and
secondly, if ATC is of the opinion that the offences referred to it for trial
does not come within the scope of offences triable under the Act.
IV) The words “cognizance
of the case” employed in Section 23 of the Act simply means, when the ATC on
receipt of the challan takes any step indicative of proceeding with the trial.
34. Given the above summation of the law, we are not inclined
to accept the contention of the learned counsel for the respondent/ complainant
of FIR No. 20 that the order of the ATC dated 13-11-2018 transferring the case
to the ordinary Court under Section 23 of the Act was premature, as it had not
taken “cognizance of the case”. The reasons for our opinion is obvious:
firstly, it is an admitted fact that the challan along with the material was
placed before the ATC, and the Court had not only served the named accused
therein to appear before it, but also provided to them the requisite material
under Section 265 (c) of Cr.P.C. to respond to the charge that was to be
framed, for which a date was fixed. Moreover, we are to keep in mind that ATC
had to peruse the entire prosecution material before fixing a date for framing
of charge under Section 265-D, Cr.P.C. These distinct steps were taken by the
ATC reflects its conscious application of mind on the material placed before it
to proceed with the trial of the named accused; secondly, the present objecting
complainant party/ respondent had not been taken by the surprise, as they were
provided a full opportunity by the ATC of addressing their contentions on the
crucial issue, before passing the contested order dated 13-11-2018; and
finally, the order of ATC dated 13-11-2018, was in fact, in compliance to the
consent order of this Court dated 13-9-2018, whereby all matters pending before
it, including the pending application of the present petitioners
dated 10-9-2018, were duly consented to be decided by the ATC, as clearly
reflected in the said order of this Court in terms that:
“.... The matter shall
be deemed to be pending before learned Judge, ATC, to whom the case has been
transferred who shall consider all matters pending before it as raised by the
learned counsel for the parties and the State and decide the same without being
influenced by any earlier observation made by the learned Judge, ATC or by the
learned High Court by way of the impugned orders...” (emphasis provided)
“Terrorism” under the Act
35.
This brings us to the merits of the very decision of the ATC transferring the
case. To adjudge the legal correctness of the said transfer order of the ATC,
it has to be seen, whether the facts alleged by the complainant in FIR No. 20
constitute an offence of “terrorism”, as envisaged under Section 6 of the Act.
As to what would constitute an offence triable under the Act was aptly dealt
with by a larger bench of this Court in the case of Ghulam Hussain v. The
State (PLD 2020 SC 61) wherein, after deliberating exhaustively on the
conflicting precedents, this Court has held that:
“16. For what has been
discussed above it is concluded and declared that for an action or threat of
action to be accepted as terrorism within the meanings of Section 6 of the
Anti-Terrorism Act, 1997 the action must fall in sub-section (2) of Section 6
of the said Act and the use or threat of such action must be designed to
achieve any of the objectives specified in clause (b) of sub-section (1) of Section
6 of that Act or the use or threat of such action must be to achieve any of the
purposes mentioned in clause (c) of sub-section (1) of Section 6 of that Act.
It is clarified that any action constituting an offence, howsoever grave,
shocking, brutal, gruesome or horrifying, does not qualify to be termed as
terrorism if it is not committed with the design or purpose specified or
mentioned in clauses (b) or (c) of sub-section (1) of Section 6 of the said
Act. It is further clarified that the actions specified in sub-section (2) of Section
6 of that Act do not qualify to be labelled or characterized as terrorism if
such actions are taken in furtherance of personal enmity or private vendetta.”
36.
We note from the above, that this Court in Ghulam Hussain’s case (supra)
has finally clarified the two most often misgivings about the scope and extent
of the term “terrorism” under the Act: firstly, it was clarified that no matter
how grave, shocking, brutal, gruesome or horrifying the offence, it would not
fall within the scope of terrorism, if it is not committed with the design or
purpose specified or mentioned in clause (b) or (c) of sub-section (1) of Section
6 of the said Act; and secondly, even if an offence falls squarely within the
scope specified in sub-section (2) of Section 6, it would not constitute the
offence of “terrorism”, if the same was in furtherance of a private dispute or
vendetta.
37. It is the case of the prosecution, as reported by Pervaiz
Ahmad, the complainant in FIR No. 20, that Burhan son of Shabbir Ahmad Chandio,
while seated in his vehicle, instigated the six-armed person, including the
present petitioners that, the complainant party “have created mutiny against
Sardar Khan and were restrained so many times but not turned away and committed
their murder and finished them, on the instigation of Burhan and Sardar Khan
accused opened faces of weapons and to spread terrorism made firing and spread
harassment in common people”, which led to the death of complainant’s father
and his two brothers. However, when we revert to what prompted the crime, as
recorded in the FIR No. 20, it is noted that it was a rivalry over the chiefdom
of Chandio tribe, and thus essentially a private dispute between two families
within a tribe. Needless to mention, that admitted, the present petitioners and
the complainant are closely related to each other through marriage. Moreover,
we hold no doubt, that the facts recorded in the FIR No. 20 depict a shocking,
brutal, and gruesome crime leading to a triple murder case. But given the ratio
of Ghulam Hussain’s case (supra), the very design and purpose leading to the
crime being a private dispute relating to tribal ascendency would to our mind
result in keeping the same outside the scope of the term “terrorism” within the
contemplation of the Act. It appears that the High Court erred by misconstruing
the fact and thereby failing to correctly apply the principles in appreciating
the true purport of the term “terrorism” under the Act.
Transfer of the case be delayed
till recording of evidence
38.
In regard to the contention of the learned counsel to delay the decision of the
transfer of the case till evidence is recorded in the
