2008 P Cr (PLP)

IFTIKHAR HUSSAIN BUTT, J.

This revision petition has been directed against an order of District Court of Criminal Jurisdiction, Kotli, dated 6-6-2007, whereby an application for quashment of the proceedings was dismissed. The facts precisely stated are that a Case No.257 of 2003 was registered on the pretext of a written F.I.R. against the accused-petitioners including some other persons on 23-9-2003. After necessary investigation, the petitioners were sent to face trial before District Criminal Court, Kotli on 22-11-2007 in offences under sections 302, 324, 147, 148 and

149. On 24-11-2003, two separate challans were filed against Zaffar Iqbal, petitioner No.5, and Imran, petitioner No.7, under section 13/20/65, Arms Act. On 16-12-2003, the charge was framed against all the accused-petitioners in murder case whereas on the same day charge was also framed against Zaffar Iqbal and Imran, accused persons, in cases registered against them under Arms Act. After framing the charge, the trial Court consolidated all the three challans and ordered that the trial Court will proceed in murder case along with other cases pertaining to the Arms Act. Thereafter, the trial Court proceeded with the trial and recorded the prosecution evidence. After completion of the prosecution evidence, the salient features of the prosecution evidence were put to the accused persons for their explanation on 5-1-2007 but the accused persons denied the prosecution evidence and submitted to produce defence evidence. On 21-1-2007, the learned defence counsel submitted that only documentary evidence will be produced in defence. On 3-2-2007, the learned defence counsel filed an application for spot inspection and finally on 4-6-2007 the defence counsel instituted the aforesaid application for quashment of the proceedings which was dismissed by the Court below vide its order, dated 6-6-2007. Hence, this revision petition. Mirza Muhammad Nisar, the learned counsel for the accused petitioners argued that under section 14(A), Arms Act, an offence punishable under section 13 or section 14, Arms Act is triable by a Magistrate of the 1st Class, although the said offences had been committed in conjunction with an offence of murder. According to the learned counsel, the trial Court has committed an illegality while proceeding with all the cases together, therefore, the proceedings of the trial are nullity in the eye of law which may be quashed and the cases registered under the Arms Act may be sent to the Magistrate of the 1st Class for hearing and disposal. In support of his contentions, the learned counsel relied upon the following authorities:-- (1) PLD 1973 (Note) 137 Lahore, (2) PLD 1989 Pesh. 162, (3) 1990 PCr.LJ 449, (4) 1991 PCr.LJ 1558 and (5) 1993 PCr.LJ

474. Malik Muhammad Saleem, the learned counsel for the complainant, controverted the arguments raised by the learned counsel for the petitioners and submitted that all the three files were consolidated vide order, dated 16-12-2003, but the aforesaid order was not challenged by the petitioners; therefore, it has attained finality. The learned counsel pointed out that the accused persons have fully explained the evidence pertaining to the recovery of illegal Arms during their examination under section 342, Cr.P.C. The learned counsel maintained that the trial Court has rightly consolidated all the three files and proceeded with the case in a legal fashion; therefore, it does not warrant any interference by this Court. Riaz Naveed Butt, the learned Additional Advocate-General appearing on behalf of the State, has defended the impugned order on all counts. I have very carefully attended to the submissions made at bar in the light of material available on the record and also perused the case-law cited. At the very outset, it will be relevant to point out that the trial Court consolidated all the three challans on 16-12-2003 after framing the charge-sheets but the aforesaid order was not challenged before any forum within the prescribed period of limitation; therefore, it has attained finality. Even otherwise, the submission of the learned counsel for the petitioners is not tenable being misconceived and without any substance. The plain reading of section 23(5), Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as IPL) shows that if during an occurrence an accused commits another offence which is not triable by that Court inspite of that, the trial Court is empowered to hear and dispose of the case in all the offences mentioned in the challan. In order to appreciate the legal position, it will be fruitful to examine the provisions contained in section 23(5), IPL. It is reproduced below:-- A perusal of the above stated section makes it crystal clear that the District Criminal Court was fully empowered to hear and dispose of the case in accordance with law. As far as the authorities referred to by the learned counsel for the petitioners are concerned, deal with an amended section 14(A), Arms Act, whereas in Azad Jammu and Kashmir the procedure prescribed for the trial of criminal cases is covered by IPL mentioned above and not by the Criminal Procedure Code. It is an enriched principle of law that special Act ousts the jurisdiction of General Law and whenever special Law prescribes certain situation, the particular law and procedure has to be followed and the provisions of General Law have, to be ignored. A host of case-law owns this view but I have decided to quote only the following case. Azad Government and 3 others v. Genuine Rights Commission Azad Jammu and Kashmir and 7 others 1999 MLD

268. The relevant portion of the judgment at page 319 reads as under:-- "It is well-settled principle of law that when a particular situation is covered by a special enactment, the provisions contained in a general statute stand ousted." It will thus, be noticed that while dealing with the instant case, the procedure prescribed by IPL shall be followed and the provisions of section 14(A), Arms Act have to be ignored. In this manner, the trial Court has not committed any illegality which could be made basis for the quashment of the proceedings. The case is at the stage of final arguments; therefore, the trial Court is directed to dispose of the case in an expeditious manner. The nutshell of the above discussion is that finding no force in this revision petition, it is hereby dismissed. H.B.T./1/Sh.C.(AJ&K) Petition dismissed.