2022 PLP 356 (SCMR)

QAZI MUHAMMAD AMIN AHMED, J.

Aggrieved by certain imputations, viewed as calculatedly malignant, the petitioner instituted a criminal complaint under section 500 of the Pakistan Penal Code, 1860 (P.P.C.), directly in the Court of Session at Mardan against his accusers, respondents herein; they were summoned pursuant to the process of the Court to face indictment vide order dated 18.05.2015, challenged on the ground that the learned Sessions Judge could not have issued the process without taking cognizance in derogation to the procedure provided under section 193 of the Code of Criminal Procedure, 1898 (the Code). The argument weighed with a learned Judge-in-Chamber of the Peshawar High Court and the process was quashed in pursuance thereto vide impugned judgment dated 20.04.2016, being assailed herein. Respondents alongside the Attorney General for Pakistan and Advocate General Khyber Pakhtunkhwa were sent for, latter to assist the Court.

2. According to the learned counsel for the petitioner, in the wake of addition of section 502-A in the P.P.C., introduced by Act IX of 2004, there was no embargo left in the field for the Court of Session, standing in impediment to assumption of cognizance by itself for offences enumerated under Chapter XXI thereof as the said amendment expressly excluded the conventional magisterial route; he has laid emphasis on the non-obstante clause inserted in section 502-A, to argue that it expressly left out application of the Code. Prominent amongst his various submissions and references was the argument that the legislature, in its wisdom and competence, devised a special procedure for expeditious disposal of cases of defamation within a stipulated timeframe and, thus, the Court of Session was consciously empowered to take direct cognizance in order to obviate procedural delays, a purpose that can be clearly 'Read Down' without possibility of error; he was supported by the Advocate General Khyber Pakhtunkhwa who addressed on Court call. Learned counsel for the respondents, contrarily, defended the impugned judgment on the ground that non-obstante clause merely envisaged prosecution of the offence by a Court of Session, notwithstanding the quantum of sentence provided therefor and, thus, it could not be construed to have swept away the entire mechanism provided under the Code as embargo under section 193 of the Code expressly stood in impediment thereto; he has referred to section 203-A, B and C of the Code to argue that expression "taking of cognizance" of designated offences, "in the court of competent jurisdiction" is conspicuously missing in section 502-A of the P.P.C. to unambiguously suggest that the complaint was to have been routed through the regular procedure; he has been supported by the Deputy Attorney General for Pakistan.

3. Heard. Record perused.

4. Section 193 of the Code places a complete and clear bar on taking of cognizance of any offence by the Court of Session in its original jurisdiction unless the case is sent up by a Magistrate under subsection (2) of section 190 of the Code. It is petitioner's case that introduction of section 502-A inserted through the Defamation (Amendment Act IX) of 2004 in the P.P.C. circumvents the supra bar and a complaint for prosecution of defamation under section 500 of the P.P.C can be directly instituted in the Court of Session for decision within the stipulated period of ninety days; the argument is built on the non-obstante clause that reads as under: "502-A. Trial of offences under this chapter.

Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Court of Session shall have the jurisdiction to try an offence under this Chapter and decide it within a period of ninety days." A non-obstante clause in a Statute is a potent legislative tool often employed, essentially to achieve a limited/specific statutory purpose, nonetheless, the concomitant overriding effect is purpose specific without impinging upon the structural integrity of the Statute; it merely presents a restricted deviation or departure without disturbing the overall functionality of the Statute. Offence under section 500 of the P.P.C. is punishable with imprisonment that may possibly extend to a period of 5 years and as such, triable by a Magistrate. The legislature in its wisdom desired an expeditious trial of the offence with right of appeal going to the High Court and this appears to be the dominant purpose for insertion of section 502A in the P.P.C. with no bearings upon the procedure, otherwise provided for the institution of a complaint; aforesaid construction is supported by the law declared by this Court in the cases reported as Syed Azhar Hussain Shah and another v. The State and others (2019 SCMR 537), Major ((Retd.) Barkat Ali and others v. Qaim Din and others (2006 SCMR 562), Habibul Wahab-el-Kheiri v. Ch. Saeed Ahmad (1979 SCMR 545), Rahim Dad v. The State and another (1980 PCr.LJ 500), Riffat Hayat v. Judge Special Court for Suppression of Terrorist Activities, Lahore and another (1994 SCMR 2177), JIK Industries Limited and others v. Amarlal Jumani and others (AIR 2012 SC 1079), Madhav Rao Jivaji Rao Scindia Bahadur and others v. Union of India (UOI) and others (AIR 1971 SC 530), Central Bank of India v. State of Kerala and others (2009) 4 SCC 94, Balveer Singh and others v. Respondent: State of Rajasthan and others (AIR 2016 SC 2266), P.C. Gulati v. Lajya Ram Kapur and others (AIR 1966 SC 595) and Basdeo and others v. Emperor (AIR 1945 All 340). The High Court though well within the remit of law, nonetheless, should have preferred to return the complaint for its proper institution, therefore, the complainant/respondent, successive failures, notwithstanding, may still present his complaint before the Area Magistrate for its onward transmission to the Court of Session for redressal of grievance complained, if so advised. Petition fails. Leave declined. MWA/M-75/SC Petition dismissed.