2014SAC8042 (PLP)

RANA MUHAMMAD ARSHAD KHAN, C.J.

By means of this petition, order dated 5-11-2014 passed by the learned single Judge of the Chief Court Gilgit-Baltistan, has been brought under challenge and has sought leave to appeal against the afore-referred order.

2. The facts in brief as stemed out of the available record are that a case FIR No. 23/2014 dated 26-5-2014 was registered, with Police Station Baseen District Gilgit, under section 295-A/34, P.P.C. read with sections 6/7, of the Anti-Terrorism Act, 1997. The said case was registered at the instance of one Himayat Ullah Khan, Senior Vice-President of Mutahida Deeni Muhaaz, Gilgit against Mir Shakeel-ur-Rehman, Chief Executive of GEO, Shaista Lodhi daughter of Gohar Ali, Veena Malik and her husband Asad Malik. The precise allegation contained in the indictment reported is that the aforesaid accused persons by visible representation through wide spoken words used derogatory remarks against holy persons of the highest degree i.e. Ummal Momineen and other members of the Holy family of Ahl-e-Bait on GEO TV. The said program was watched by the public in general in which something of the nature of disrespect to Hazrat Ali (R.A) Hazrat Fatima-Tu-Zahra (R.A), Khulufa-e-Rashideen and other companions of the Holy Prophet (Peace be upon him) was articulated. It was alleged that the private GEO TV Channel exhibited highly objectionable and obnoxious conduct and other named accused also played the similar role for which disgruntlement and infuriation had arisen generally at the level of Muslim Ummah. It was further alleged that no person having Muslim faith could afford to behave like this. Lastly, it was requested that the criminal case be registered against the accused persons and they be got deterrent punishment.

3. On the registration of case, the Home Department, Government of Gilgit-Baltistan, vide letter No. SO(PPr)-14/2014(JIT) dated 10-6-2014, in terms of Section 19 of Anti-Terrorism Act, 1997, constituted a Joint Investigation Team comprising Mr. Hafiz ur Rehman DSP/IW, Gilgit, IP Zahid Iqbal, I/W Gilgit and one officer from each ISI, MI and IB to investigate the matter thoroughly. The JIT investigated the matter and prepared a report under section 173, Cr.P.C. and the same was placed before the Court of competent jurisdiction for trial. The examination of the record reveals further that the accused person did not associate with Joint Investigation Team and remained absconding and did not surrender to the jurisdiction of investigating authority. The learned Trial Court after completing the legal formalities declared the accused persons absconders vide order dated 8-9-2014 and proceeded with the case in their absence. Mir Shakeel-ur-Rehman while sitting abroad in Dubai through constituted Attorney Muhammad Suleman made an application bearing Civil Miscellaneous No. 263 of 2014 in the Chief Court Gilgit-Baltistan, appearing to have been made under section 526, Cr.P.C. read with section 561-A, Cr.P.C., on the one hand, sought transfer of the trial pending before the learned Judge, Anti-Terrorism Court No. 1, Gilgit and on the other hand, sought quashment of the pending proceedings before the trial Court. The application fundamentally has been made on the ground that the petitioner is neither owner of the GEO Entertainment Channel nor in any manner, he is involved or party to telecasting of program which is subject matter of the FIR. It was stated that the petitioner has falsely been involved just to cause torture and humiliation which smacks mala fide intention. The next argument advanced before the learned court below was that since the learned trial judge is in hurry to conclude the trial and proceeding with the matter in such a haste that the learned Judge is not even bothering to comply with the certain legal provisions rather he is acting in violation of the mandatory legal provisions of law, therefore, he has lost his confidence upon him and it was requested that file may be withdrawn from the learned Trial Judge, Anti-Terrorism Court No. 1 Gilgit and the same be entrusted to some other Court for adjudication on merits. The learned Chief Judge of the Chief Court Gilgit-Baltistan, vide order dated 5-11-2014 dismissed the application on the ground that the petition, on its face value, is not maintainable for the pertinent reason that the Special Law known as Anti-Terrorism Act, 1997 has taken away the jurisdiction of the court provided under the general law. The decision was mainly focused on the point that the jurisdiction of the Chief Court under sections 561-A, 435, 439, Cr.P.C. is not available in the cases registered under Anti-Terrorism Act, 1997. In addition to the fact that such application was earlier dismissed on 5-9-2014 which was not called in question anywhere and it has, thus, attained finality. On the point of transfer of case, the reason which weighed with learned Single Judge was that there was no other judge available in the territorial jurisdiction of the said Court, therefore, the proposed relief practically cannot be granted to the petitioner. Emphasis was also laid on a point that the absconder is otherwise disentitled to any such relief from the court of law either on the point of equity or on the question of law. Reference in this behalf was made to Muhammad Sabir Roshan v. The State (2000 PCr.LJ 1195), Begum Nusrat Bhutto through daughter Ms Sanam Bhutto v. The State through Chairman NAB (PLD 2002 Lah. 74) and Haq Nawaz v. The State (1999 PCr.LJ 1381).

4. Feeling aggrieved and dissatisfied of the afore-noted judgment dated 5-11-2014, this petition, seeking leave to appeal under Article 60 of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, has been made.

5. By means of short order dated 18-11-2014, we had dismissed the petition seeking leave to appeal for the reasons to be recorded later on. Following are the reasons in support of the short order.

6. We have heard the learned counsel for the petitioner and leant ears to his arguments very consciously and perused the record available very carefully with his able assistance.

7. On having visual look on section 31 of The Anti-Terrorism Act, 1997, one thing is established vividly that judgment or order passed or sentence awarded by Anti-Terrorism Court is subject to the result of appeal. Legislature in its own wisdom while enacting the afore-noted provision of Section 31 was influenced by the gravity of situation and it provided the said provision that trial shall be concluded within a period of seven days and after the decision of the learned trial judge, the appeal shall be decided by the Chief Court within the same stipulated period. Section 25 of the Anti-Terrorism Act, 1997 is crystal clear on the point that after the decision of the learned trial court, copy of the judgment so pronounced shall be supplied to the accused and the public prosecutor free of cost on the same day and the record of the case would also be transmitted to the appellate court within three days of the pronouncement of the judgment. The appeal against conviction and acquittal has been provided under the afore-referred section. Now, we revert to the applicability of sections 435, 439 and 561-A, Cr.P.C. to the case tried under special law i.e. Anti-Terrorism Act, 1997. A cursory look on the aforesaid provisions of Code of Criminal Procedure gives us to believe that these provisions are inconsistent to the provisions of Anti-Terrorism Act, 1997. The minute examination of the section 31 of Anti-Terrorism Act, 1997 makes it abundantly clear that the ad-interim order, passed by learned trial Court of Anti-Terrorism Court cannot be challenged either by way of revision or by invoking the inherent jurisdiction of the Chief Court, as all orders passed by an Anti-Terrorism Court shall remain final subject to the result of appeal as provided in this Act. The aforesaid provisions of sections 25, 31 and 32 of the Anti-Terrorism Act, 1997 are to be read in conjuncture with each other, which do not permit the chief Court to revise an order passed by the Special Court. The Anti-Terrorism Act, 1997, being a special law, has the overriding effect in view of reiteration in Main Nawaz Sharif and others v. The State (2000 MLD 946) in which the chain of authorities pro and contra had been discussed. In addition thereto, section 32 of the Anti-Terrorism Act, 1997 provides a complete answer to the proposition which, in terms, provides that the provision of this Act shall have effect notwithstanding anything contained in the Code or any other law, but save as expressly provided in this Act of 1997, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of the Act, apply to the proceedings before a special Court and for the purpose of the Code, a special Court shall be deemed to be a court of session. The examination of section 12 of the Act reveals that the special court shall have the exclusive jurisdiction for trial of the Scheduled offences notwithstanding anything contained in the Code or any other law for the time being in force. The relevant portion of the judgment afore-noted reads as follows for ready reference. "Had it been a case of general law, I would have also taken the same view. The case in hand is under Special Law. The provisions of the Code of Criminal Procedure are inapplicable to the proceedings arising out of the Special Law by virtue of subsection (2) of section 1 of the Code and section 32 of the Act, 1997, has overriding effect. Section 1(2) of the Code says: "It extends to whole of Pakistan, but in absence of any specific provision to the contrary, anything herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." Thus, there being inconsistency and the difference between the provisions of section 30 of the Act and section 196 of the Code, the provisions contained in the latter will not be applicable to the proceeding before the Special Court. Therefore, in view of the inconsistency, as discussed above, section 32 of the Act would come into play and the bar contained in section 196, Cr.P.C. would not in any way affect to the taking of cognizance by this Court in exercising power under section 19 of the Act Consequently, the application is dismissed."

8. Much emphasis has been laid by the learned counsel for the petitioner that during the transmission of the morning show of GEO Entertainment Channel "Utho Jaago Pakistan" kalam was sung by some Qawal and the said kalam relating to Hazrat Fatima Bibi (R.A) and Hazrat Ali (R.A) has been aired on various TV channels, same Qawali was shown with joint dance performance of both girls and boys. Be that as it may, this court has nothing to do to discuss the matter on merits because the proceedings before this court are in a limited sense arisen out of the application under section 561-A, Cr.P.C. and section 526, Cr.P.C. It is suffice to observe that only the trial Court is competent to embark upon the merits of the case after holding trial. Therefore, we consciously would confine ourselves to a question of transfer and the applicability of proceedings. In nutshell, we need not to dilate upon the merits of the case lest it may cause prejudice either of the parties.

9. There is another judgment titled Muhammad Sabir Roshan v. The State (2000 PCr.LJ 1195) in which the said question of law has been discussed that the fugitive of law and the courts looses some rights granted by the procedural as well as substantive law and the conduct of the accused in such like cases is very much relevant which, in any case, cannot be ignored. In addition thereto, the scope of sections 435, 439 and 561-A, Cr.P.C. has been discussed in the relevant paragraph which reads as follows for convenience sake:- "The plain reading of section 31 of the Anti-Terrorism Act shows that judgment or order passed or sentence awarded by the Anti-Terrorism Court subject to the result of appeal shall be final/conclusive. It appears that the intention of the Legislature while enacting section 31 was that the trial was to be concluded within 7 days and so also appeal in the same period by the High Court. The section 25 of the Anti-Terrorism Act, 1997 is more clear on this aspect of the matter, as after the judgment is pronounced the copy of the same is to be supplied to the accused, as well as to the Public Prosecutor and record of the case is to be transmitted to the High Court within three days. Thus, the procedure under the Act is made automatic and the appeal is only permitted against the judgment or order of acquittal. The other orders become final as contemplated under section 31 of the Anti- Terrorism Act. Thus, sections 435, 439 and 561-A, Cr.P.C. are inconsistent to the above provisions of the Anti-Terrorism Act. It is crystal clear that the order passed under Anti-Terrorism Act by Special Judge cannot be assailed/challenged by invoking revisional or inherent jurisdiction of this Court. The reason for the same is that only appeal is provided against the judgment of conviction or order of acquittal. The provisions of sections 25, 31 and 32 of the Anti-Terrorism Act, 1997 cannot be read in isolation but those are to be read in conjunction with each other, which do not permit the order passed by the Special Court to be challenged in revision or under inherent jurisdiction vested in this Court."

10. The case, State through Advocate-General Sindh/Public Prosecutor, Karachi v. Shamsher Rehman alias Shamoo Dakoo alias Khalid (2000 YLR 902) are also quoted with advantage. We, therefore, regret our inability to agree with the arguments of the learned counsel for the petitioner so far as the issue or proceeding under section 561-A, Cr.P.C. is concerned.

11. It has been noticed with anguish that the case has arisen out of the proceedings seeking premature acquittal under section 561-A, Cr.P.C. which relief has been declined. This question was examined with regard to the applicability of section 197, Cr.P.C. in Mushtaq Hussain Bukhari's case wherein it was observed that such proceedings are aimed at to project unjust cause. The purpose of which is nothing more than that to procrastinate the proceedings. The relevant portion of the said judgment is reproduced hereunder for facilitating of reference:- "This Court has often observed with anguish that fragmentary, decisions of such character are most inconvenient tending to delay administration of justice. Same has been the view of the Privy Council in Nanhelal v. Umrao Singh (AIR 1931 PC 33). This very concise and very weighty analysis cum observation has always been valid and is of course more valid today particularly as to what is happening with regard to the application of the provisions which are of technical nature. Instead of making use of them for advancement of justice, in a large number of cases they are used to frustrate the same. We are therefore, constrained to hold that in such like cases as is the present one, the course to be followed and the question to be asked is: whether, the matter should not be left for final decision by the trial Court. Its orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decisions; as it tends to harm the advancement of fairplay and justice."

12. No doubt that in a cited judgment at the bar Muhammad Nawaz v. Ghulam Qadir and 3 others (PLD 1973 SC 327) the honourable apex court in a polestar judgment took the view that it is one of the important duties of the superior courts to create and maintain such confidence and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a judge or Magistrate who be reasonably regarded as being prejudicial against him. The reasonable apprehension must be adjudged while keeping in mind the decree of intelligence possessed by the accused and the surrounding atmosphere in that part of the area.

13. It has already been pointed out that there is only one judge available in Gilgit-Baltistan covering the whole area. In absence of any other presiding Judge, it becomes more difficult to accept the plea of the petitioner accused. Now, it is to be seen as to which provision of law deals with the transfer of cases, which in terms provides that notwithstanding anything contained in the Act, the Chief Justice of the Chief Court, if considers it expedient so to do in the interest of justice or where the convenience or safety of the witnesses or safety of the accused so requires, may transfer a case from one court to another and that court to which the case is transferred under subsection (1) of section 28 of the Act shall proceed with the case from the stage at which it was pending immediately before the transfer and transferee court shall not be bound to recall/rehear any witness who has already given evidence and may act as the evidence already recorded. It means that no unnecessary delay in the conclusion of trial be caused in any manner. However, the facts narrated in this judgment discernibly provide that there is no other court to which the case could be transferred. Even otherwise, the finality of the judgment is not attached to the order or sentence passed by the trial judge as the same is subject to the result of appeal under section 25 of the Act ibid.

14. The proposition of law is too settled to admit any doubt that while making an application for transfer of the case from one court to another, it must be established that genuine apprehension has arisen in the mind of the accused that fair and impartial trial is not possible at the hands of the learned trial Judge. Even before this court, no pertinent reason has been advanced or put forward by the accused. The applicant should not be illusory or ill-founded. The mere fact that the learned trial Court is proceeding with the case in hasty manner, by no means, would provide any justification to invoke the jurisdiction of the supervisory court to transfer the case. The Anti-Terrorism Act, 1997 itself provides a speedy disposal of the trial and it has been made imperative upon the learned trial Judge to conclude the case within the period of seven days. Therefore, in the given situation or set of circumstances no motive or malice can be attributed to the learned Judge of the trial Court.

15. These are the reasons in support of the short order dated 18-11-2014. HBT/25/GB Petition dismissed.